Removing Conditions on Marriage-Based GCs (Part 2 of 2)

In Part 1 of this InfoArticle, MurthyDotCom readers are provided with information on filing and obtaining conditional permanent residence and the related I-751 removal of conditions process. This second and final part of the article discusses further options for those who may need to remove conditions on their marriage-based, permanent resident status.

Options When Filing I-751 While Divorce is in Process

Even if a couple decides to divorce, many states require a period of separation and/or a “cooling off” period before the divorce can be granted. If either party contests the divorce, this can further prolong the process. Individuals can find themselves in a period of marital limbo, when they are separated yet legally married at the time the I-751is filed.

Jointly Filing I-751 While Divorce is in Process

It is possible for the spouses to jointly file the I-751, even after the couple is legally separated and/or their divorce / annulment is in process, assuming the U.S. citizen spouse agrees to cooperate. In this situation, the USCIS officer who reviews the case should issue a request for evidence (RFE), asking for proof of termination of the marriage (i.e., proof that the divorce was finalized sometime after the I-751 was filed). The conditional resident spouse normally should be given 87 days to respond with proof in the form of a divorce decree or annulment.

If the parties provide proof of the divorce, the USCIS officer will amend the I-751 to indicate that the conditional permanent resident spouse is eligible for a waiver of the joint filing requirement, and will then adjudicate the case in the manner described above for an I-751 filed after a divorce or annulment. If the foreign national cannot provide the proof within that timeframe – presumably, because the divorce is still pending, the officer can either approve or deny the case based on the evidence on record, or have the couple appear for an in-person interview to verify that it was a bona fide marriage at its inception.

Request for Waiver of Joint Filing Requirement While Divorce is in Process

The USCIS cannot waive the standard joint filing requirement based on termination of the marriage until the divorce or annulment is final. However, while the couple is still legally married, if the U.S. citizen spouse refuses to sign the I-751, the conditional resident spouse can include a waiver request based on termination of the marriage. In this situation, the USCIS officer will issue an RFE to request proof of termination of the marriage. Assuming the foreign national spouse can provide the proof within the 87-day response window, the USCIS officer can grant the waiver request.

Normally, if the divorce is not final by then, the USCIS officer will have to deny the I-751, since the conditional resident will not have satisfied the joint filing requirement. In this situation, the conditional resident will be issued a notice to appear (NTA) and placed in removal proceedings. While in removal proceedings, once the divorce is final, the conditional resident may submit evidence of eligibility for the waiver. The USCIS then can reopen the case and adjudicate it as an I-751 filed after a divorce.

Joint-Filing Waiver: Allowed in Certain Extreme Cases

There are two additional situations in which a conditional permanent resident, who is still legally married, can file the I-751 without the spouse’s cooperation. The first is if the foreign national entered into the marriage in good faith but has been battered or subjected to extreme cruelty by the U.S. citizen spouse. The second is if termination of permanent resident status and removal from the United States would result in extreme hardship to the conditional permanent resident. Extreme hardship is a high standard and can be based only upon conditions that arose after the conditional residency was acquired.

Filing After Death of U.S. Citizen Spouse

The final exception to the joint filing requirement is if the U.S. citizen spouse dies. In order to obtain approval of the waiver of the joint filing requirement, and have the conditions on permanent residence removed, the conditional permanent resident again must be able to show that the marriage was entered into in good faith. It is also necessary to document the death of the U.S. citizen spouse and file the I-751 within certain timeframes.

Timelines for Filing the I-751 in Above Situations

Jointly filed petitions must be filed within the 90-day period prior to the expiration of the conditional status. Those seeking to file for waiver of the joint filing requirement may file earlier, however; once they otherwise qualify for the waiver, if they so choose.

There are also regulations governing late filings. The USCIS may excuse a late filing under certain circumstances. However, it is always safer to file within the standard timeframes. If this does not occur, or becomes impossible for some reason, it is vital to consult with a qualified immigration attorney to devise the best possible strategy under the circumstances.


Since there has been a high rate of marriage fraud, historically, in order to obtain immigration benefits, the conditional residence procedures involve a review of cases that were approved based on marriages of relatively short durations. The I-751 is required to establish that a marriage was entered into in good faith, even if things did not work out. Therefore, the parties must submit the required evidence in all such cases. Couples should be mindful of the need to file the I-751, both in terms of timing and documentation evidencing their shared lives. It is important to maintain such documentation from the time of marriage, through the filing of the I-751.

Individuals having marital problems should also be careful with these documents and should try to retain what they can, before they have to leave the marital home. In most cases, it is advisable to consult or work with an attorney before filing the I-751. This is particularly true for couples with marital difficulties and for those with unusual circumstances regarding their particular marital situations, as these cases can become more complex and are likely to obtain denials, unless there is effective representation and well documented paperwork, meeting all the legal requirements.

While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, clients of the Murthy Law Firm are referred to articles, like this one, which remains relevant and has been updated for our readers.


Copyright © 2004-2020, MURTHY LAW FIRM. All Rights Reserved

Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.