As a Miami immigration lawyer, I have represented many clients who have obtained their conditional residency via marriage to a United States citizen. However, what happens if you became a conditional resident (a two-year green card-holder) based on a marriage, and the marriage ended in divorce before you and your spouse filed the Form I-751 petition? Below are some frequently asked questions.
I became a conditional resident based on a marriage, but I’m getting a divorce. The Form I-751 petition has not been filed yet. What are my options?
You might still be able to remove the conditions on your residence by filing the form with a waiver request. If you have any questions in regard to this, you may want to speak with a Miami immigration attorney.
What will filing this waiver let me do?
This waiver would allow you to file Form I-751 not only by yourself (without your former spouse) but also at any time after your divorce – whether before the expiration of your two-year green card or after, so long as you have not been deported (“removed”) from the United States. Again, if you have any questions in regard to this, I would recommend that you speak with a Miami immigration lawyer to discuss your options.
What happens if I file my Divorce-Based I-751 before my conditional residence ends?
If you get a divorce during the two-year period of your marriage-based conditional residence, this will not automatically terminate your status. So, in principle, you should be able (if you so choose) to wait until the very last days of your conditional residence before filing your I-751. Note: in order for eligibility, you must not been accused of immigration fraud and U.S. immigration authorities have no other reason to try to cancel your green card.
Should I wait to file my I-751, or do I have to file it immediately after my divorce becomes final?
As a practical matter, there are very few reasons why you should not want to file your I-751 immediately as soon as your divorce becomes final. One perfectly good reason would be that you are waiting to gather all the evidence you will need to support your filing.
Are there any benefits to filing a divorce-based I-751 early?
Filing a divorce-based I-751 early is generally a good thing. Filing early could be perceived by immigration authorities as a show of your good faith disposition to proceed diligently with the legal obligations of your immigration status.
Second, the more recent the divorce justifying your waiver request is, the clearer and the more available the evidence you need to support your case might be.
Third, approval of an early I-751 filing would also allow you to obtain more quickly not just the benefit of a more secure permanent status but perhaps also some personal relief in terms of closure.
However, this is a decision that should not be taken lightly, and I would recommend that you speak with a Miami immigration lawyer to discuss the best option(s) for your specific case.
What happens if I file my Divorce-Based I-751 after conditional residence ends?
If you do not file Form I-751 before the expiration date on your conditional resident card, you may face an automatic loss of lawful status, and raise the risk of removal from the United States.
I am out of status, but have not yet been removed from the U.S. What are my options?
For those conditional residents who are out of status but have not yet been removed from the U.S., it is never too late to file a divorce-based I-751 petition.
In fact, unlike late jointly filed I-751 petitions, “late” divorce-based I-751 petitions do not even need to provide any particular excuse for being late (though it might still be wise to provide a brief explanation, in good faith). It remains that any type of late petition should be filed as soon as possible to avoid the consequences of unlawful presence (triggered by loss of status on the expiration date of the conditional resident card).
If you would like more information on removing conditions on permanent residence after obtaining a divorce, please contact Miami immigration lawyer Michael G. Murray, Esq. at (305) 895-2500 or visit our website at www.mmurraylaw.com.