Marriage Visas, Family Visas, Joint Removal of Conditions, Waivers, Effect of Divorce Or Separation on I-751 Applications
I-751 Removal Of Conditions
Those who obtained a green card through a marital relationship less than 2 years old are granted conditional residency for two years. The green card issued typically has an expiration date of two years. Within 90 days of the expiration of the two year period, the couple and dependents who received green cards must file a petition with the USCIS for removal of the conditions. The application and supporting documentation are filed using Form I-751.
Upon approval, the alien is then granted complete permanent residency. The application to remove the condition must be filed jointly by the couple along with documents showing a joint life. In some instances, those divorced, separated or in the process of doing so may file and request a waiver of the joint filing requirement.
USCIS has issued several memoranda dealing with policies and procedures in different situations including joint filing, availability of waivers, divorced couples, separated couples as well as those in the military:
Delegation of Authority to USCIS Service Center Directors to Deny Petitions
In a January 30, 2006 Memorandum, the USCIS granted the Service Centers authority to deny an I-751 if satisfied that the marriage was entered into for the purpose of evading US immigration laws. The Service Center is also directed to forward any fraudulent petitions to the Office of Fraud Detection and National Security (FDNS). The Service Centers may also forward petitions to the local USCIS office for an interview if an interview is likely to be useful. Read Entire Memo
Effect of Divorce/Separation on I-751 Petition-Additional Clarification
USCIS NSC Flash #19-2005, Revised Revision to NSC Flash #6-2005.
With USCIS NSC Flash #19-2005 issued on April 11, 2005, the USCIS clarified its position on how to file an I-751 petition when the parties are divorced or separated. In a nutshell, divorced aliens may file a separate petition and request a waiver. Those aliens separated but not divorced or who have initiated divorce proceedings which is not completed, may submit a joint petition to remove conditions. This memorandum provides USCIS’ updated position on the effect of a divorce or separation on I-751 petitions. [i-751-condition-nscflash19-2005] NSC Flash #18-2005, Revision to NSC Flash #6-2005.
These memoranda had been previously issued by the USCIS and were superceded by NSC Flash #19-2005 above. They contain USCIS’ position on I-751 petitions by those divorced, separated or in the process of doing so prior to the final revision above. NSC Flash #18-2005 was issued on March 30, 2005 and NSC Flash #6-2005 was issued before that on December 27, 2004. [Read Entire Memo i-751-condition-nscflash18-2005 Read Entire Memo i-751-condition-nscflash6-2005]
I-751 Filing A Waiver of the Joint Filing Requirement Prior to Final Termination of the Marriage
On April 10, 2003, the USCIS issued a memorandum on whether a conditional resident can file a waiver of the joint petitioning requirement on Form I-751 after the commencement of divorce or annulment but prior to final termination of the marriage. This memo instructs that a waiver may not be filed by those whose marriages have not reached complete termination. Read entire memo i-751-waiver-joint-filing-41003
Extension of Green Card Status for Conditional Residents with Pending Form I-751. Petition to Remove Conditions on Residence
A December 2, 2003 memorandum provides an automatic extension of an alien’s conditional green card status once a properly filed I-751 is received by the USCIS. The extension lasts until the USCIS makes a determination on the I-751 petition. This memo also authorizes that such aliens be given evidence of lawful status in the form of a 12-month I-551 stamp or I-94 showing conditional green card status. Read Entire Memo i-751-extend-status-12203
Military Service-Removal of Conditional Resident Status if Spouse is Serving Abroad in the U.S. Armed Forces as Part of Operation Enduring Freedom
A January 7, 2002 memorandum provides guidance for USCIS in adjudicating I-751 petitions to remove conditional status on residence when the conditional resident is married to a member of the US armed forces serving abroad as part of Operation Enduring Freedom. Read Entire memo i-751-condition-military-10702