Effect of Separation on Jointly Filed I-751
Hello, I am scheduled for an I-751 (joint) petition interview with my wife. She moved out some time ago and does not wish to come to the interview. Should I inform NSC that I am separated but no divorce has been filed? Should I go alone or with an attorney? We do not have mutual bank accounts or bills and such. Just affidavits from church, condo association, charity, etc. and plenty of pictures. But we lived together for a long time, even before we got married. Thank you for your help.
— Anonymous
Generally, when a Form I-751, Petition to Remove Conditions from Permanent Residence, is filed as a `joint’ petition and an interview is required by the United States Citizenship and Immigration Services (USCIS), then both the U.S. citizen spouse and conditional permanent resident must appear at the scheduled interview. The longstanding rule has been that if you appear at your interview for your jointly filed I-751 but are divorced, the I-751 petition will be denied and you will have to file another I-751 petition as a waiver. Thus, the I-751 joint petition does not automatically convert to an I-751 waiver upon the divorce. Instead, the conditional resident must affirmatively contact the USCIS and request that it be withdrawn and then file an I-751 petition as a waiver.
Irrespective of the longstanding rule, some USCIS local field offices recently began to allow conditional residents to provide a divorce decree at their interview. In those limited instances, the officers will convert the I-751 petition from a joint petition to a waiver petition. If your wife refuses to attend the interview and your marriage is over, it may be in your best interest to obtain a final judgment of dissolution of marriage, withdraw the joint petition, and file another petition as a waiver. With the waiver, you will have to provide evidence of your marriage just as if you were filing a joint petition.
As you mentioned, such evidence includes, but is certainly not limited to, pictures and affidavits. It would be wise to consult with an immigration attorney regarding the ramifications of attending (or not attending) the I-751 interview and to discuss all of the various ways to prove your bona fide marital relationship.
Michael Shane and Evan Shane, Immigration Attorneys
Last updated: December 14, 2009