inside immigration information about marriage green cards and work visas in America
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When a two year marriage green card is issued, it is called “conditional” and an I-751 Petition will need to be filed to obtain a ten year marriage green card.
When a foreign national marries a U.S. citizen and is granted an I-551 Permanent Resident marriage green card, often the marriage green card is only good for two years. Why? Because they were married for less than two years when the marriage green card was issued and the U.S. government wants to monitor their case to see if the green card marriage lasts.
In order to get another marriage green card that is not “conditional,” this time for ten years, the Permanent Resident (who is referred to as a “Conditional Permanent Resident”) must file an I-751 Petition before the two year marriage green card expires to let the U.S. government know the marital relationship still exists.
Do I Have to File the I-751 90 Days Before My Two Year Marriage Green Card Expires?
No. The I-751 Petition is due “up to” 90 days before the two year marriage green card expires. In other words, the deadline for the I-751 Petition to be received by the USCIS is the date the two year marriage green card expires.
What If We are Separated?
Unfortunately, the U.S. government only gives the foreign national in this situation two choices: either file the I-751 Petition as “married” or file the I-751 Petition as “divorced.” The only exception to this rule is when there is domestic violence in the marriage. In other words, the I-751 Petition cannot be filed as “separated” or “taking a break” or having a “trial separation.” Unless the domestic violence exception applies, to successfully get a ten year I-551 marriage green card granted, the couple either has to be still married (and living together) or officially divorced in order to get the I-751 Petition approved.
When an I-751 Petition applicant is divorced, sufficient evidence that he/she had a real marriage (in the beginning of the marriage) must still be submitted with the I-751 Petition. Many aspects of the marriage will still be taken into consideration by the Immigration Officers.
IF YOU’RE NOT LIVING TOGETHER, GET DIVORCED IMMEDIATELY
Each of the 50 states has its own divorce laws. Most of them require that a married couple first file the divorce paperwork, and then wait 6 months before the final divorce paperwork will be signed by the Judge. But what if your I-751 is due before the divorce becomes final?
It is definitely not a good idea to file the I-751 Petition as if you are still married when you don’t live together anymore. It can be considered fraud if you lie on the I-751 Petition and state that you both live at the same address when you do not. There is a legal way to deal with this situation and still be granted your ten year green card.
If the divorce will not be final until shortly after the day the I-751 Petition is due (which is the expiration date on the two year I-551 card) then it is best (in most cases) to file the I-751 Petition late — after the divorce is final. The final divorce should be attached to the I-751 Petition, along with many documents proving that the marriage was real.
The rules say that the USCIS may excuse an untimely filing of a “jointly filed” (both spouses still married and living together) I-751 ONLY if it is accompanied by a reasonable explanation demonstrating extenuating circumstances (see INA 216(d)(2(B)).
However, the rules don’t specify a filing period for an I-751 Petition filed by one spouse (called a “waiver request I-751 Petition”) — but it is still important to include a reasonable explanation demonstrating extenuating circumstances. In my experience, the failure to file any I-751 Petition on time will be evaluated by the USCIS Officers, so it is very important to include an explanation about the extenuating circumstances (including the fact that the divorce was pending).
Is waiting for the divorce always a reasonable explanation? It’s hard to say – most of the time. Each case is different and in my experience the reasonable explanation must be very carefully worded, with assistance by someone like an Immigration Attorney who specializes in I-751 Petitions, who reads all the Immigration Judges’ I-751 denial opinions and knows what the legal definition is of “reasonable.”
WHAT IF YOU’RE STILL NOT SURE YOU WANT A DIVORCE?
I know, this puts you and your spouse in quite a predicament. What if you just need a time out to make some decisions? What if the marriage might possibly work, given a short period of separation? Unfortunately, you don’t have the time or the luxury for a long decision making process. The bottom line is that the I-751 Petition must be filed in order to get your ten year marriage green card issued, and there is no category called “separated.” I have seen a few couples who were separated get a divorce for the I-751 Petition only to reunite later.
MY FIRST I-751PETITION WAS DENIED BECAUSE I WAS NOT DIVORCED YET, CAN I FILE A SECOND I-751 PETITION?
In most cases, yes. but be sure to read the official Memorandums listed below.
WHERE CAN I FIND THE I-751 LAW CONCERNING DIVORCES?
There are many published regulations, in official “Memorandum” form that discuss the I-751 Petitions. The immigration I-751 laws are not contained in one law book. The most recent I-751 memorandums were published in 2009 (you can google the titles) and are entitled:
DON’T TACKLE THIS ONE ALONE
I know you are smart, and there are many things you do on your own: use turbo tax for your tax returns, perform your own car tune ups or remodel your home — all of those things can probably be done on your own. If you make a mistake, it can be fixed. But if you want to stay in the United States, don’t put your Permanent Residence in jeopardy – hire an expert for the I-751 Petition.