I have to file I-751, and I am currently in divorce proceedings. Can I file a waiver if the divorce is not final?

Asked about 2 years ago - Ellicott City, MD

I have just started the divorce process, as we had to be separated for a year before filing. My green card will expire in two months. I don't know if the divorce will be final in two months. How late can I file I-751? How much time will the government give me to get them a divorce decree? What do people usually do in my case? My husband is not going to help me with anything.

Attorney answers (6)

  1. Meghan Anne Abigail

    Contributor Level 13

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    Answered . If you file based on divorce without the decree enclosed, you will get an RFE giving you 87 days to submit it. I have also heard of attorneys filing based on hardship and then updating it with the divorce decree later on. If you were abused at all, you can also file based on abuse.

    You may file based on divorce, abuse, or hardship anytime before you are removed.

    Like my colleagues suggested, I recommend meeting with an attorney to help you decide what strategy is best for you.

    Good luck!

  2. Gintare Grigaite

    Contributor Level 18

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    Answered . Yes, you will be filing for a waiver even if the divorce is not yet finalized. After it is final, however, you may either submit it to USCIS, or take it with you if you are called for an interview.

    Contact immigration attorney Gintare Grigaite, Esq. at 646-407-2331. Answers on AVVO do not constitute legal... more
  3. Kevin Lawrence Dixler

    Pro

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    Answered . There are some generalizations. Many experienced attorneys will charge a reasonable fee for an appointment or teleconference. This allows them to spend more than 30 minutes to ask questions, analyze and evaluate strategies. At times, it is best to take no action. Many apply that fee to the fee that they will charge. At times, it is wisest for some to avoid taking action.

    Currently, you 'should not' file a form I-751 self petition until the divorce is final unless you will claim significant and documented abuse. To file before the divorce is final can result in denial.

    Yes, you can file a self petition, even if it is 'after' the the expiration of conditional resident status. However, the longer you avoid representation, the higher the chances that you will lose important evidence to support your case.

    However, I strongly recommend that you hire a competent and experienced immigration attorney as soon as possible, who will take the time to help you not only with the process, but to understand the process.

    This is general information, not legal advice, and does not create an attorney client relationship.
  4. Sheila Therese Starkey Hahn

    Contributor Level 4

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    Answered . Just to clarify, unless you are filing based on abuse, you should wait for your divorce decree and then file the I-751 Petition. When filing the petition alone (rather than jointly) with a request for a good faith marriage waiver of the joint filing requirement, you may file outside the 90 day window, any time before you are removed.

  5. Inara Khashmati

    Pro

    Contributor Level 13

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    Answered . You need to hire a lawyer. Do not seek advice on a case like this here. Most lawyer will see you for free. I strongly suggest scheduling an appointment with one of them. Good Luck.

  6. J Charles Ferrari

    Contributor Level 20

    1

    Lawyer agrees

    Answered . I agree with my colleagues.

    J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not... more

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