When you are originally a foreign national who came to the United States to marry a U.S. citizen or Lawful Permanent Resident (LPR), you will have already been through the process of getting a conditional green card. After two years, you must file Form I-751 with the United States Citizenship and Immigration Services (USCIS) to petition to remove conditions on residence. Upon approval of your petition, you will be granted permanent residency without conditions.
The purpose of the conditional green card is to prove to USCIS that your marriage is still in good faith after the original two years are up. However, circumstances can happen in life and in your marriage that cause you and your spouse to separate. Maybe you do not want a divorce at this time, or maybe you still need to discuss the option of divorce with your partner.
It is important that you be upfront and honest throughout the entire process of filing Form I-751 with USCIS. Being truthful about the separation shows USCIS that you are trustworthy. If you withhold information or are dishonest about your separation, you could potentially be flagged for immigration fraud. You may lose your green card and your chance at future permanent residency. Honesty about your separation will only benefit you in the long run, especially since USCIS is not legally allowed to deny your petition on the mere fact that you are separating or have initiated a divorce.
Form I-751, Petition to Remove Conditions on Residence, is the form you send to USCIS to remove conditions on your permanent residency status. Your conditional permanent residency card is given through marriage to a U.S. citizen or LPR.
Form I-751 is typically filed jointly, meaning that both you and your spouse file for the petition and submit the required evidence. However, if you are in the process of separating, a decision must be made whether you will file jointly or separately.
If you and your spouse have separated and you are living in a different location, you must notify USCIS about your change of address. To change your address, file Form AR-11 within 10 days of moving. This is an important step in your separation process, as notifying USCIS prevents suspicion of immigration fraud or general giving of false information.
Filing Form AR-11 may delay your process for petitioning to lift constraints on your residency. But taking the extra time to notify USCIS of your new address avoids potential suspicion when you need to show evidence of residency while filing Form I-751 and living separately. Not doing so can even impact your future application for naturalization. Keep your timeline intact and prevent future suspicion by filing all necessary paperwork.
Furthermore, if you have received a Request for Evidence (RFE), you should always provide the most current paperwork after the separation. If you submit documents that have not been updated—like bank statements or bills that insinuate you and your spouse still reside together—USCIS can use this as a basis to deny your petition and/or revoke your green card. Your information submitted on Form I-751 must be consistent with your current living situation. Just because you are separated does not mean that the original intent of your marriage was fraudulent. If you entered your marriage in good faith yet are separating now, you can still obtain your residency card.
Deciding whether to file Form I-751 jointly or separately depends on your particular situation with your spouse. Even if you are married, filing I-751 separately may be necessary if your spouse is not willing to participate in the process. If your spouse is willing to participate in the joint filing, you should do so. It is important to discuss your situation with both your partner and your immigration attorney to figure out which filing option is best for you.
If your spouse is willing to participate — even if you are separated — you will continue with your petition as a joint effort. In this case, USCIS will still recognize that you are together and that there is the potential for reconciliation, especially since neither of you has filed for divorce.
Filing jointly means that your residency card is based on your marriage is in good faith (bona fide). Though separated, you must still prove your marriage was not for immigration purposes. To file jointly, you and your spouse must:
If you are separated and filing jointly, it is beneficial to work with an experienced immigration attorney. Since you are still married, you have the legal right to continue to file jointly, yet legal assistance may be helpful, especially in gathering evidence and preparing for a potential interview.
If your spouse refuses or is unwilling to participate in your I-751 process, you will need to file separately. Filing separately requires a finalized divorce. Since each state has its own laws regarding marriage and divorce, you must have your divorce finalized by your state court.
If you divorce after filing I-751 jointly, you may need to amend your Form I-751. Your immigration attorney can help you with a waiver amendment.
Timing is everything when it comes to filing separately, which is why filing your AR-11 is crucial in separation cases. Working closely with your immigration attorney can be highly valuable because of our experience in the field.
If you submit your I-751 petition in full and show that the original intent of your marriage was entered in good faith, you may not even be scheduled for an interview. It is completely plausible to have your I-751 approved without an interview. If you provide solid proof that your separation is not a form of immigration fraud, that may be enough information for USCIS to base their decision on.
If you are scheduled for an interview, it is most likely because of one of the following reasons:
Both you and your spouse need to attend the I-751 interview if you are separated. If you are separated and not divorced but your spouse refuses to participate in the interview, you may have to get a divorce to proceed further. Divorce does not have to be the only option, and every couple in a separating situation is unique. Only you know the circumstances of your relationship and separation.
Have a discussion with your partner about your marital status. If they still refuse to support you by not attending an interview, your petition may be automatically denied. We understand that this process can be complicated and emotionally driven. Please speak with your immigration attorney if your spouse refuses to corporate so we can quickly come up with an alternative approach.
If you are scheduled for an I-751 interview after your divorce, you will file Form I-751 by yourself. Again, USCIS cannot deny your petition just because of a separation. Proceeding with filing an I-751 separately means you will need a finalized divorce certificate from the state court.
If you are in the process of receiving your green card through marriage, living separately can add an extra layer of complication. Being honest with USCIS throughout your I-751 application process is of the utmost importance. If you have any questions about this process, reach out to the experienced attorneys at Scott D. Pollock & Associates P.C. We have over 30 years of experience in immigration and naturalization law.
We also understand the complexities of the immigration system as well as the hardships you may be facing during this time of separation. We are here to help you obtain your permanent residency card and will guide you through the process during your separation. Contact us at 312.444.1940 or fill out an online contact form today.