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April 14, 2008: Divorce and I-751 Waiver Issues

Divorce and I-751 Waiver Issues

Your website is very useful and informative.

I came here with a spousal visa and was granted conditional permanent resident status. It will expire in April of next year. Unfortunately, my marriage didn’t work and my husband, a US Citizen, left and went back to my country as he likes to live there. We decided to get divorced. Now my divorce is final. Can I file the waiver now? Is it ok to file ahead of time, before the 3 months prior? If so, can I file myself or should I hire a lawyer to help me? What should I submit aside from the form I-751?

Thanks so much for your time.
—Anonymous

Thank you very much for your kind comment about our website.

You have raised a number of important I-751 issues that I will be pleased to address for you. First, you should realize that your conditional resident status terminates by operation of law on the date of your divorce. This means you must not travel until you file the I-751 waiver, and obtain a receipt from the USCIS. The receipt will state that your resident status is extended, and that your ability to travel and work in the USA continues.

Second, you may and should file the waiver right away to avoid your continuing to accrue unlawful presence in the USA. This is true, even if your conditional green card does not expire soon, for the reason mentioned above.

Third, of course, there is no requirement that you use a lawyer to help you, but clearly, if you retain the services of a qualified immigration lawyer to help you now, your chances of getting an approval on the I-751 waiver are much greater, in my opinion, than if you attempt to file it yourself.

You should submit copies of both front and back sides of the card. You should also submit evidence that shows that your marriage was entered into ”good faith” and was not for the purpose of circumventing immigration laws. According to the instructions furnished by USCIS, you may “submit copies of as many documents as you wish to establish this fact and to demonstrate the circumstances of the relationship from the date of the marriage to the present date, and to demonstrate any circumstances surrounding the end of the relationship, if it has ended. The documents should cover, but not limited to, the following examples:
• Birth certificate(s) of child(ren) born to the marriage.
• Lease or mortgage contracts showing joint occupancy and/or ownership of your communal residence.
• Affidavits sworn to or affirmed by at least two people who have known both of you since your conditional residence was granted and have personal knowledge of your marriage and relationship. (Such persons may be required to testify before an immigration officer as to the information contained in the affidavit.) The original affidavit must be submitted and also contain the following information regarding the person making the affidavit:
• His or her full name and address
• Date and place of birth
• Relationship to you or your spouse, if any; and
• Full information and complete details explaining how the person acquired his or her knowledge.
Affidavits must be supported by other types of evidence listed above.
• Financial records showing joint ownership of assets and joint responsibility for liabilities, such as joint savings and checking accounts, joint federal and state tax returns, insurance policies that show the other spouse as the beneficiary, joint utility bills, joint installments or other loans.
• Other documents you consider relevant to establish that your marriage was not entered into in order to evade the U.S. immigration laws.”

Michael Shane and Evan Shane, Immigration lawyers

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