I-751 Filing When Separated But Not Yet Divorced
Clients frequently ask me whether they can file a joint I-751 petition while separated or in active divorce or annulment proceedings.
The answer is: Yes!
Pursuant to the USCIS Policy Manual, Volume 6: Immigrants, Part I, Family-Based Conditional Permanent Residents [6 USCIS-PM I] (Chapters 1-7):
USCIS may not deny a joint petition solely because the spouses are separated or have initiated divorce or annulment proceedings. If all other eligibility requirements are met and both the CPR and petitioning spouse or stepparent appear for an interview (if requested by USCIS), USCIS approves the joint petition. However, if the divorce or annulment is finalized while the joint petition is pending, the CPR is no longer eligible to remove conditions using the joint petition. However, the CPR may request that USCIS amend the joint petition to a waiver based on divorce.[4]
What is the Correct “Basis for Petition”?
- Joint Filing > My Spouse; or
- My marriage was entered in good faith, but the marriage was terminated through divorce or annulment.
If you are currently separated or in active divorce proceedings, I recommend initially filing the I-751 jointly, proactively notifying the USCIS of a separation or pending divorce (as newly required), then submitting a written request to have the joint petition amended to a waiver (based on termination of marriage), when the divorce or annulment proceedings are finalized.
If the USCIS receives a jointly filed I-751 and the spouses are still married but legally separated or in pending divorce or annulment proceedings, the USCIS may issue a Request for Evidence (“RFE”).
The RFE will give the CPR 87 days to submit a copy of the final divorce decree or annulment along with a written request stating that the CPR would like to have the joint petition amended to a waiver based on divorce.
Three scenarios are possible in this situation:
CPR Does Not Respond | >> I-751 Denied (for abandonment) |
Marriage Terminated | >> CPR Responds (with documentation) |
Marriage Not Yet Terminated | >> CPR Responds (with explanation), USCIS Approves Joint Petition or Schedules Interview |
It is important to note that the USCIS may not deny a joint petition solely because the spouses are separated or have initiated divorce or annulment proceedings. However, there must be sufficient evidence that the CPR spouse entered the qualifying marriage in good faith.
What Happens If A Waiver Petitioner Is Filed Before Marriage Is Terminated?
If USCIS receives a Form I-751 filed by a CPR as a waiver request based on termination of marriage and the spouses are still married but legally separated or in pending divorce or annulment proceedings, the USCIS may issue a Request for Evidence (“RFE”).
The RFE will give the CPR 87 days to submit a copy of the final divorce decree or annulment.
Three scenarios are possible in this situation:
CPR Does Not Respond | >> I-751 Denied (for abandonment) |
Marriage Terminated | >> CPR Responds (with documentation) |
Marriage Not Yet Terminated | >> CPR Responds (with explanation), I-751 Denied (as ineligible for waiver) |
Can I File I-751 While Divorce Is Pending?
If you have further questions about filing I-751 while separated or in active divorce proceedings, contact lawyer for I751, Dayna Lally, at [email protected]. Consultation fees apply.
Disclaimer: This blog article is provided by Lally Immigration Services, LLC for informational and marketing purposes. This article does not constitute legal advice, nor does it establish an attorney-client relationship. No reader should act, or refrain from acting, on the basis of any information presented in this article, or elsewhere on this website, without seeking the advice of appropriate legal counsel, or other professional counsel, licensed in the relevant jurisdiction. Lally Immigration Services, LLC expressly disclaims any and all liability with respect to any actions taken, or not taken, based on any content of this article or website. Prior results do not guarantee a similar outcome.
Last Reviewed/Updated: 05/16/2024
