My Marriage is Falling Apart, and Our I-751 Joint Petition to Remove the Conditional Basis on My Resident Status is Still Pending — What Do I Do?
Published: July 30, 2009

When a foreign national is granted U.S. residence as a result of his marriage to a U.S. citizen, the permanent resident card (green card) is usually issued on a conditional basis, and valid for only two years. In other cases, where the marriage at issue has already reached its second anniversary by the time the foreign national is first approved for adjustment of status, or enters the U.S. on their immigrant visa, the resident card will be issued on a permanent basis, with a 10 year validity and “without condition.”

For conditional residents approved for a two-year status, the underlying marriage is ideally a harmonious one and the conditional resident, along with their U.S. citizen spouse, will eventually be in a position to file an I-751 joint petition to remove the conditional basis in the 90 day period leading up to the expiration of conditional status. As long as substantial supporting documentation confirming the couple’s shared residence is included with the joint petition, Citizenship and Immigration Services (CIS) usually approves the case without an interview and issues a permanent 10 year, resident card within 6 to 12 months of the filing — sometimes sooner. Occasionally, I-751 joint petitions are scheduled for interview at a local CIS office because not enough supporting documentation is submitted with the filing, or CIS somehow obtains what it considers derogatory or conflicting information.

When tension arises in the marriage such that the couple separates while the immigration case is pending, or the U.S. citizen spouse refuses to attend the interview, a strategy must be formulated.

Case 1: The couple no longer lives together
There is nothing in the regulations that prevents CIS from approving the petition if husband and wife:

  • appear for the interview,
  • convince the interviewing officer that their marriage was bona fide when it was entered into,
  • express an interest at proceeding with their petition and, when applicable,
  • advise that they are working at reconciling.

Case 2: The couple may or may not be separated, but the U.S. citizen spouse refuses to attend the interview
A little trickier — as governing regulations pretty much prohibit the approval of the joint petition if the U.S. citizen spouse refuses to appear. However, CIS Headquarters recently issued a new policy statement allowing for the I-751 joint petition to be converted to an I-751 “waiver” petition, where the foreign national is allowed to “go it alone” and without having to re-file the petition as a waiver case, as previous policy dictated. (In general, I-751 waiver petitions allow for the removal of the conditional basis in cases where the a U.S. citizen is not cooperative). In such cases, the foreign national, in their individual interview, will generally be questioned thoroughly about the sincerity of the marriage and the claimed period of a shared residence. Also, CIS will eventually request that a divorce decree be presented in support of the newly converted waiver filing. However, where the divorce will be contested and entry of a decree in a relatively short period of time is unlikely, additional strategy is required.

Additionally, in cases where the foreign national awaiting their I-751 joint petition interview is the victim of domestic abuse, an entirely different strategy altogether must be considered.

Copyright © 2009, By Law Offices of Richard Hanus, Chicago, Illinois