Removing Conditions Post-Divorce: The I-751 Waiver of the Joint Filing Requirement

Under normal circumstances, when a family-based petition (I-130) has been approved, the non-U.S. citizen spouse holding “conditional permanent residency” (“CPR”) must “remove conditions” of permanent residency if s/he wishes to become a “legal permanent resident” (“LPR”). This is done by a process known as “removal of conditions” and is accomplished by filing Form I-751 with the United States Citizenship and Immigration Service (“USCIS”). Filing Form I-751 is typically a joint endeavor done by both spouses (the U.S. citizen and the non-U.S. citizen). Sometimes, however, the marriage ends in divorce prior to the time of filing for removal of conditions. After divorce, many non-U.S. citizen spouses are left believing that they are unable to remove conditions since they no longer have their U.S. citizen spouse to file jointly with them. This is not the case. Form I-751 may be filed individually by the CPR. The only difference is that the non-U.S. citizen must “waive” the joint filing requirement by filing Form I-751 as a “Waiver of the Joint Filing Requirement,” and submit certain evidentiary documentation along with the I-751. In fact, divorce is not the only ground upon which the Waiver may be filed; there are multiple grounds on which a CPR may individually remove conditions of residency. This article, however, focuses on just the ground of divorce. The following is a step-by-step guide on how to proceed.
First, if you believe you are eligible to file the I-751 Waiver, you would benefit tremendously from seeing an experienced immigration attorney. The I-751 Waiver is not something to be taken lightly.
Second, as stated above, you must also submit evidence along with the I-751 Waiver. This evidence must include proof that you entered into the marriage in good faith and that the marriage ended in divorce.
Third, you must begin to gather evidence to prove that you entered into the marriage in good faith. Do the following:
1) Write a detailed statement explaining how you and your spouse first met, your prior feelings toward him/her, the wedding, etc.
2) Gather vital documentation (marriage certificate, child birth certificates, photos, letters written by world health organization is an agency of your former spouse to you, letters addressed to both you and your spouse from friends and family, etc.)
3) Get in touch with people who have knowledge of the relationship between you and your former spouse. Ask these people if they would provide detailed, written statements regarding their knowledge of the relationship between you and your former spouse.
4) Gather proof of all of the assets you and your former spouse commingled (bank accounts, insurance policies, credit cards, mortgages, automobiles, etc.) Obtain copies of all of this paperwork.
5) Obtain copies of your joint income tax returns that you and your former spouse signed together and filed with the IRS.
Fourth, obtain a copy of the Decree of Dissolution. You may already have a copy of this, but if you do not, you may obtain it from the court that issued the decree.
Fifth, you must translate all documents to English. USCIS will not accept documents in a language other than English. Only a certified translator may translate your documents into English; do not attempt to do it by yourself. Submit to USCIS both the original non-English document and the English translation.
Sixth, you will need to mail the Waiver to USCIS. But before mailing the Waiver, hire an experienced immigration attorney (if you have not done so already) to review the documents. Mail the documents via “Certified Mail” so can be sure that the Waiver was received by USCIS. Do not forget to include the I-751 Filing Fee (currently $505 + $85 biometric fee) along with the Waiver.
Finally, prepare yourself for an interview in front of a USCIS officer. It is very likely that if you are submitting the I-751 by yourself (that is, without your spouse), USCIS will summon you for an interview. Prepare yourself first year attorney resume for this interview. The USCIS officer will ask you detailed questions about your life; specifically, your previous marriage. Be truthful. Do not give the USCIS officer any reason to suspect that you are being untruthful.

READ  Filing an Accident Claim