Sometimes marriages are entered in good faith, but they don’t work out. And if a marriage falls apart for a conditional permanent resident, it makes the immigration case more complicated. But when a spouse won’t sign Form I-751, it doesn’t automatically mean that the conditional resident will lose his or her permanent residence in the United States.
Waivers for the Joint Filing Requirement
Typically, you are required to file Form I-751 jointly with the spouse through whom you obtained conditional status. You may apply for a waiver for the joint filing requirement if:
- Your spouse is deceased; or
- You entered the marriage in good faith, but the marriage was later terminated due to divorce or annulment; or
- You entered the marriage in good faith, but you have been battered or subject to extreme cruelty by your petitioning spouse; or
- Your conditional resident parent entered the marriage in good faith, but you have been battered or subject to extreme cruelty by your parent’s spouse or by your conditional resident parent; or
- The termination of your status and removal would result in extreme hardship.
The waiver is not a separate form. You should prepare Form I-751, Petition to Remove Conditions on Residence, and select the appropriate category in Waiver Filing Request (Part 3). Learn more in I-751 hardship waiver.
When a Divorce isn’t Final
Generally, a divorce must be final before you may file Form I-751 and USCIS can make a decision. This presents an additional complication for I-751 petitioners that won’t be filing jointly. Divorces can take several months to finalize. During this time, it’s possible that the conditional green card will expire and the conditional resident becomes removable from the United States. There are strategies to deal with this problem, but it’s best to get expert legal advice. We recommend that anyone that needs to file with a waiver speak to an immigration attorney first.
If you are applying for a waiver, you should also understand that your petition will be scrutinized more closely. You will need to provide documentation that proves your marriage was not entered for the purpose of evading U.S. immigration laws.