What Happens to My Residency if My Spouse Wants a Divorce and Will Not Sign Form I-751?
Getting a divorce does not necessarily mean a loss of permanent residency status. Let our Nashville immigration attorneys guide you through your options.
It is not uncommon for those who immigrate to the United States to receive their residency status based on their marriage to a United States citizen or permanent resident. At the time that the immigrant’s residency is granted, however, it is conditional, and only lasts for two years, if the marriage is less than two years old. At the end of the two-year time period, both spouses must sign the I-751 Petition to Remove the Conditions of Residence form.
Failure to petition to remove the “conditions” on residence after two years may result in the immigrant being referred to immigration court for deportation proceedings
What can complicate matters is when the spouses are divorcing or separating, and as such, one spouse is not willing to sign the other’s Form I-751 petition. If you are getting a divorce or are divorced, and your spouse will not sign the I-751, here is a look into your options and whether or not your residency status will be affected.
One of the biggest concerns with getting a divorce when your residency was based on your marriage is that a divorce can make it look as though the marriage was a sham union designed solely for the purpose of obtaining your residency in the first place. The Immigration Service considers such “green card marriages” to be a form of fraud. In fact, your marriage may be scrutinized, as divorce can cast doubt on whether or not your marriage was legitimate to begin with.
However, getting a divorce if you have a conditional residency permit does not mean that your residency status will automatically be revoked. Even U.S. Citizenship and Immigration Services (USCIS) recognizes that valid marriages—entered into in good faith—may still fail.
As stated above, in cases in which spouses are still married two years after the non-citizen’s receipt of a visa, the spouses will both sign and jointly file an I-751 petition. In the event that you are divorced or separated and therefore your spouse will not sign (or you are getting divorced and your spouse does not want to sign), you can file for a waiver of the joint filing requirement. You must file the I-751 waiver after your divorce has been finalized. If your divorce is pending or the parties are even still married, there are still options for you, such as filing a waiver based on abuse or cruelty, but it is strongly advised that you speak to a skilled immigration attorney first.
If you do file a waiver, you will need to submit evidence to USCIS that proves that your marriage was the real deal to begin with, and was not fraudulent for the purpose of obtaining a visa. This evidence may include some of the original evidence that you sent to USCIS. It is often a good idea to include a written statement explaining the cause for your divorce, as well.
Getting divorced is difficult enough. If you are facing the loss of residency as a result of that divorce, you need legal counsel immediately. Remember, divorce or potential divorce does not necessarily mean that you will lose legal status and be deported; rather, it means that you are in a unique situation and must take certain steps to ensure that you can remain in the United States. It is important to act timely and professionally, and this is where we can help.