US Citizen Spouse Wants A Divorce – Do I Need To File For I-751 Waiver?

When most of us get married to the love of our lives we never think that things will sour and we will end up getting divorced. If this is the case for your situation and the US citizen spouse wants a divorce, you need to file for Removal of Conditions with a waiver.

If You Are The Green Card Holder

If you were approved for the 2 year green card and it is about to expire, you will need to apply for the Removal of Conditions (ROC) I-751 form with your spouse (or with a waiver if you are divorcing).

Things get tricky when your US citizen spouse decides they want a divorce before the Removal of Conditions application is approved. Although this causes a little bit of a problem, you can still get approved for the 10 year green card as long as you can prove you married your spouse in good faith.

First thing to do as soon as you know you will be headed for divorce is to gather as much evidence of a good faith marriage as possible!

What Evidence Do You Need To Show A Good Faith Marriage?

The USCIS is actively looking for green card fraud so the more evidence you have of a good faith marriage, the easier it will be for your Removal of Conditions (ROC) case to be approved.

  • Jointly filed tax transcripts for the entire period that you were married
  • Joint bank account statements with activity during your entire marriage
  • Car insurance documents showing both names
  • Other bills and documents with both names (life insurance, health insurance, utilities)
  • Rental agreement, mortgage documents or the deed to your home with both names
  • Copies of cards from family and friends with both names
  • Photos of you and your spouse with family during your marriage

The main thing that the USCIS wants to see as evidence of a good faith marriage is co-mingling of finances.

If you provide as much evidence as you possibly can gather up, send all of it in with the I-751 Removal of Conditions application and the waiver, you then sit back and wait to see if the USCIS request anything else from you.

If you receive a Request for Evidence (RFE) it means that the evidence you sent was not enough and you need to gather up stronger evidence of a good faith marriage. We will discuss this is another post.

If You Are The US Citizen Spouse

If you are the spouse and are in the process of divorcing your immigrant husband or wife, the only thing you need to focus on is the divorce filing.

You do not need to do anything with the USCIS but you will still be held to the Affidavit of Support that you signed when you both applied for the Adjustment of Status (AOS).

You are legally liable if your immigrant spouse files for any means-tested-benefits such as Welfare, SNAP, WIC or any other government welfare system. There are exceptions to this rule such as Medicare and Medicaid. Although it is very rare for the US government to sue you for the amount of money your immigrant spouse would receive in welfare – it is still possible.

It is best to split with your immigrant spouse on good terms so that you can keep in touch occasionally and know sooner if they have filed for government assistance.

Your obligation under the Affidavit of Support stays in effect until the immigrant spouse works 10 quarters, abandons their green card, they get US citizenship or they die.

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