When Congress passed the immigration law relating to foreign spouses, it was quite concerned about marriage fraud: that is, weddings held for the primary purpose of getting the foreign-born spouse a U.S. green card. U.S. legislators figured that, given the difficulties of maintaining a fake marriage (in which the couple is expected to live together, share finances, and basically act like a family unit), any couple that makes it to two years is of less concern.
Congress therefore put into the law that couples whose marriages had not hit that two-year mark when they first applied for U.S. residency must be given a second look by U.S. immigration authorities. Thus, these immigrant spouses will be granted only conditional residence at first; a status that will expire after two years, unless the holder applies to turn it into permanent residence, using Form I-751, issued by U.S. Citizenship and Immigration Services (USCIS).
This article discusses how to file that I-751 application, both for cases when the conditional resident is still married or has gone through a divorce from the U.S. citizen sponsor.
Timing of Filing an I-751 for U.S. Permanent Residence
Do not wait until a full two years have passed to take action on your green card's expiration date! Take a look at that date (it's on the card) and count back 90 days from when it expires.
That's the beginning of the 90-day period during which you would (under typical circumstances) need to submit your I-751 application to "remove" the conditions on your residence to U.S. Citizenship and Immigration Services (USCIS). If you miss that deadline by a few days, then submit the form to USCIS anyway, along with a letter explaining what happened (ideally something beyond your control). It would be wise to consult with an attorney for any longer delays, though exceptions are possible.
If, however, you are no longer married, and cannot submit a joint petition either because you've divorced, or because your U.S. spouse is deceased or abusive, or because there's some other problem but you would face "extreme hardship" if returned to your country of origin, you do not need to worry about the 90-day application-submission period. You can likely submit your application on your own, together with a request for a waiver of the joint filing requirement. (The divorce waiver is discussed below.)
However, despite there being no deadline to file an I-751 waiver request based on a divorce, your lawful status in the United States (and work authorization) will expire on the date your conditional residency ends. After that, the federal government has the authority to place you into removal/deportation proceedings.
Filling Out USCIS Form I-751
The main part of the application is USCIS Form I-751 (a free download from the USCIS website). You will also need to pay a fee to submit it (unless you're applying for a waiver based on battery or abuse, in which case there's no fee). Check USCIS's I-751 page for the latest, amount.
Most of the information that Form I-751 asks for is straightforward. The instructions below refer to the 04/01/2024 version of form.
In Part 1 and Part 2 of the form, the immigrant fills out basic biographical and contact information. Your "A-Number" is on your conditional resident card. If you don't have a "USCIS Online Account Number," don't worry about it (you would only have one if you filed certain sorts of applications in the past).
Pay close attention to the "Additional Information About You" section of Part 1. If you have been placed into removal, deportation, or rescission proceedings, see a lawyer. You still can (and should) file this form, but the process going forward could get complicated. If you have been arrested or had other run-ins with law enforcement, definitely consult an immigration lawyer as well as a criminal lawyer; you could find yourself in deportation proceedings soon. And if you are married to someone else than the person who helped you get conditional residence, this petition is not going to work; again, see an attorney.
Part 3 describes the "Basis for Petition." Check box 1.a, for a joint filing with a spouse. If you're not filing jointly then, to request a waiver based on divorce, you will check box 1.d. under Part 3, in the section titled Waiver or Individual Filing Request. Note that the waivers mentioned on this form are not exclusive of each other. Go ahead and check all that apply to your situation. If you have a final divorce and have also suffered abuse, for example, you should check both of the relevant boxes under Part 3.
Part 4 is for biographical and contact information about the U.S. citizen or lawful permanent resident half of the couple.
Part 5 is for listing ALL the immigrant's children, regardless of their immigration status. Children who received conditional residence along with the immigrant will not need to file separate I-751s to become permanent residents; being named here is enough (provided you check the box for "applying with you").
Part 6 is meant for people who have disabilities, particularly if USCIS ends up calling them in for an interview (which it might not). In these spaces, one can ask for reasonable accommodations to make the process easier and more accessible, such as whether you will need wheelchair access or to receive any written materials in Braille.
Part 7 is for the immigrant (here, called the "Petitioner") to fill out.
Part 8 is for the U.S. citizen or lawful permanent resident to fill out and sign, it it's a joint petition.
If an interpreter helped you, they must fill out Part 9. If a lawyer, paralegal, or other document preparer helped you, they must fill out Part 10.
Preparing Supporting Documents to Include With Jointly Filed Form I-751
Along with your application form, you'll need to submit (for a joint petition with your U.S. spouse):
- a photocopy of the front and back sides of your resident card
- evidence (photocopied is fine) that the marriage is ongoing and bona fide (not a fraud to get a green card), such as copies of birth certificates of any children born to the two of you, of your lease or home mortgage showing that you live in the same place, of bank, credit card, insurance (car, home, auto), and other financial statements, and so on. Don't send things you already submitted; focus on new material from the two years since your approval for conditional residency.
Members of the military have slightly different document requirements; see USCIS's instructions for filling out the form.
Preparing Supporting Documents to Include With Form I-751 With Divorce Waiver
The key part of the waiver is that the immigrant must prove that the marriage started in “good faith” and has since ended in a final divorce. Thus anyone applying for a waiver will need to supply slightly different sorts of documents, including:
- a photocopy of the front and back sides of your resident card
- evidence (photocopied is fine) that the marriage was bona fide when you entered into it (not a fraud to get a green card), such as reports from couples' therapists or a minister or clergy person you consulted, copies of birth certificates of any children born to the two of you, of your lease or home mortgage showing that you lived in the same place, of bank, credit card, insurance (car, home, auto), and other financial statements, and so on. Don't send things you already submitted; focus on new material from the two years since your approval for conditional residency
- a copy of the final divorce decree or other document terminating or annulling the marriage, and
- if you are applying for additional forms of waivers, evidence to support those, as well.
For the government regulations on this topic, see 8 CFR Section 216.5(a)(1)(ii).
In addition, it's helpful to submit a personal, written declaration, describing how you were committed to making the marriage and the steps you took to save it. If the U.S. citizen or permanent resident spouse was a primary reason for the marriage ending, owing to adultery, abuse, or some other form of mistreatment or difficult behavior, try to supply documentary evidence of this, such as statements from third parties who knew what was going on.
What if you don't yet have a final divorce decree? See "What Does the 'Final' Divorce Requirement Mean?," below.
What Exactly Is a “Good Faith” Marriage?
Given the importance of proving a “good faith” (sometimes called bona fide) marriage, let's take a closer look at this requirement. It basically means that the immigrant and spouse intended to make a life together when they got married. It doesn’t have to have been a “good” marriage—in other words, the fact that it might have been rocky at times or ended in divorce isn’t fatal when it comes to qualifying for U.S. permanent residence.
To prove a “good faith” marriage, every applicant will need to submit documents, pictures, and letters showing that you wanted to spend your life together, as described above. This requirement is meant to protect against immigration fraud. If you and your ex-spouse do not share joint documents, or your case presents other “red flags”, you might want to include letters from friends and family who can verify that you and your spouse entered into a good faith marriage.
Letters should include specific examples of when friends and family spent time with you and your spouse. Be sure the letters are signed and include a copy of the writer’s government-issued identification (driver’s license, state identification card, or the like) for verification.
What Does the “Final” Divorce Requirement Mean?
If requesting a waiver of the I-751 joint filing requirement, you must have a final divorce in order for USCIS to remove conditions on residence and receive your permanent green card.
A final divorce or judgment can be granted only in state court. Some states, like California, require the divorce to be pending at least six months before the court can finalize the judgment. This could present timing issues for getting your I-751 approved. Contact a local family law attorney or state court self-help center for state-specific information.
Fortunately, you do not need to have a final divorce before you file the Form I-751. (See USCIS Memorandum I-751 Filed Prior to Termination of Marriage (April 3, 2009).)
You can simply submit a copy of your request for divorce (sometimes called a petition) with the state court and then submit a copy of the “judgment” showing that your divorce is final when the state court finalizes the divorce.
USCIS will not make a decision in your case until the divorce is final.
Submitting Form I-751 and Awaiting USCIS Action
The USCIS website will give you the appropriate mailing address for people living in your part of the United States. You cannot walk this application in to a USCIS office, nor file online (yet, as of mid-2024).
Once USCIS receives your I-751, it will review it for completeness. It something is missing, it will send you a request for additional evidence or materials (such as fees).
If not, within a few weeks (normally), it will send you a Form I-797C Notice of Action at the mailing address you provided. This is your receipt notice, containing an individual tracking number for your application. Take good care of this receipt notice. It will serve as your evidence of lawful status in the U.S. while you wait. The wait could be a long one (many months).
Next, you will receive a notice scheduling you for biometrics (taking of fingerprints and other information) at the Appointment Service Center located closest to the address you provided. You must bring both the biometrics notice and a valid unexpired government-issued identification to your appointment. If you need to reschedule, the biometrics notice has instructions for contacting USCIS.
After you complete biometrics, you will wait until you receive a decision in your case by mail, or an appointment notice for an in-person interview at the USCIS office closest to your address. USCIS doesn't often call applicants in for an interview, but it might; particularly in a joint filing case where the evidence just doesn't seem sufficient to approve.
Once your application is approved, your conditional residence status will convert to permanent resident status. And the good news is, you will be able to count your time as a conditional resident toward eligibility for naturalized U.S. citizenship.
Do You Need a Lawyer's Help With The I-751 Application?
Form I-751 is reasonably straightforward, and can be filled out without help if you are organized and understand what documents will best prove that your marriage is bona fide or prove that it ended in divorce.
For any complicating circumstances, however; for example, if you are living apart, have been arrested, or have only just begun divorce proceedings or otherwise need a waiver of the joint filing requirement; consult an experienced immigration attorney.