Filing With A Divorce Waiver For I-751 Removal Of Conditions And The Interview

What happens when you file for divorce before your Removal of Conditions (I-751) is filed? First things first, do not panic! This situation happens quite often and the USCIS has a process for individuals that need to remove conditions without their spouse.

You will need to submit the I-751 waiver to the USCIS as soon as you file for divorce. You do not have to wait until your divorce is final to submit your application to remove conditions with the waiver. If you receive an interview notice before your divorce is final, you can reschedule your interview.

The important thing is that you know exactly what is required of you.

What Evidence Will I Need To Submit With The I-751 Waiver?

Evidence of a bona fide marriage is one of the requirements. So what exactly is a bona fide marriage? You need to prove that you entered the marriage in good faith and not for an immigration benefit.

annulment-fraudInclude the following to show co-mingling of finances:

  • Bank statements
  • Joint tax transcripts
  • Joint credit cards
  • Life insurance policies
  • Investment accounts
  • Joint mortgage/deed to home
  • Joint health insurance

Other types of good evidence that you should include:

  • Joint apartment lease
  • Joint car ownership
  • Joint car insurance
  • Joint loans/debt
  • Utility bills in both names
  • Cell phone family plans
  • Family photos together
  • Itineraries for trips together

Begin gathering all these documents from the date of your adjustment of status approval. You will not need to provide evidence that has already been submitted before.

Front loading your petition is a great idea. Provide as much evidence and documents showing every detail of your life together.

Will I Be Required To Attend A Removal of Conditions Interview?

Most new immigrants tend to not want to have an interview because it can be stressful. It is like you are being judged and your fate is in the immigration officer’s hands.

I can understand this hesitation in going to an interview but the fact is that the majority of people filing the I-751 with a divorce waiver will be required to go to an interview. As long as you know what the immigration officer is looking for, you should fine at the interview and get approved for your 10 year green card.

Removal of Conditions Interview: Divorce Waiver Questions

  • How did you meet your ex-spouse?

    divorce-before-roc

    Questions will be about your marriage/divorce.

  • What was the length of your dating period before marriage?
  • How was your relationship with your spouse’s family?
  • When did you start experiencing problems in your marriage?
  • Did you take any steps to resolve those issues?
  • Which one of you initiated the divorce?
  • When did you move out of the marital residence?
  • Was there any infidelity?
  • What specific factors led to dissolving your marriage?
  • Are you in a new relationship?
  • Why do you think this one might work even though you got divorced?

How To File For The I-751 Divorce Waiver

Filing your I-751 removal of conditions with a divorce waiver is straightforward. Below is a list of everything that needs to be included with your application.

  •  USCIS filing fee ($590)
  • A copy of both sides of your permanent resident card
  • A copy of the divorce decree or annulment document that ended your marriage. (If not available, include evidence that the divorce proceedings have started)
  • Evidence of a “good faith” marriage. See Prove a Good Faith Marriage When Filing I-751
  • Evidence regarding the circumstances surrounding the end of your marriage (personal statement)

Do I Need To Provide A Personal Statement?

A personal statement and evidence describing the circumstances of your divorce or pending divorce will be very helpful to the USCIS adjudicator.

  • No-Fault Divorce: If your divorce was due to irreconcilable differences or a mutual decision to end the marriage, you can explain that the divorce was a no-fault action and provide the reasons that led to the termination of your marriage. Examples of irreconcilable differences can include: disagreements about whether to have children,where to live, or anything else that is relevant. If you attempted to save the marriage through marriage counseling, you can include records (e.g. invoices) or proof that you attempted to get counseling with your spouse but they refused.
  • Divorce by Fault of Ex-Spouse: In some cases a divorce is forced by actions of the other spouse. The divorce may be the result of the spouse’s adultery, abandonment, impotency, or imprisonment. In these cases, you can submit a copy of the divorce or annulment petition that alleged these fault grounds or other evidence that supports your claims.

When filing Form I-751 jointly with a spouse, the petition must be filed within the 90-day period before the conditional resident’s green card expires. However, when filing with a hardship waiver, the petition can be filed any time after conditional resident status is gained and before the conditional residence is removed.

Filing For Hardship Waiver When Divorce Is Not Final

In some cases your conditional resident status may expire before your divorce is final. Divorce proceedings can be very lengthy and cause delays. In these cases, there are many options which include (but are not be limited to):

  • File I-751 with evidence that you have initiated the divorce proceedings (and  include copies of scheduled court dates related to the divorce)
  • Wait to file I-751 until conditional resident status has expired and you are placed into removal proceedings
Divorce decree and Removal of Conditions
Divorce decree and Removal of Conditions

In these situations, you should probably consult with an experienced immigration attorney that can provide advice on the best strategy for the petitioner.

If you chooses to file Form I-751 with a hardship waiver based on divorce, USCIS will want proof that the marriage has been terminated (e.g. divorce decree or annulment) before it is granted. You will have several months between filing the petition and your interview date so if your divorce isn’t final by the time you have an interview, you need to reschedule the interview.

It will be helpful to your case to provide evidence that the divorce has been initiated. Examples of acceptable evidence include the court documents that demonstrate the case is in process. USCIS will mail a receipt notice (Form I-797) that will extend your condition 2 year green card for an additional period of time (usually one year).

USCIS will also issue an RFE (Request for Evidence) at a later date that asks for the final divorce decree when it is available.

My Spouse Is Refusing To A Divorce, Can I Still File With A Hardship Waiver?

If your spouse refused to accept a divorce or you are currently separated, you can still file an I-751 hardship waiver. If  you can demonstrate “extreme hardship,” you may be eligible to file the I-751 on this ground.

Extreme hardship can be difficult to define and the USCIS has made clear that the hardship must have happened after you received conditional residence (2 year green card).

Factors In An Extreme Hardship Case:

  • Your age
  • If you have children (their age, number, and immigration status of the children)
  • Your health (and health of child, spouse, or parent)
  • Your ability to earn income and find a job in the country to which he/she would return
  • Your length of residence in the U.S.
  • Your family ties in the U.S.
  • The financial impact of your removal
  • The impact of a disruption of your educational opportunities
  • The psychological impact of your removal
  • The current political and economic conditions in your home country if you returned
  • Family and other ties in your home country
  • Your contributions to and ties to the U.S.
  • Your immigration history

After filing Form I-751 with a hardship/divorce waiver, you should expect to attend an interview at the local district office where you live. Petitions with hardship waivers are decided on a case-by-case status. So every detail counts! There is no such thing as too much evidence.

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