Filing an I-751 After you Separate with Your USC Spouse But Before Divorce
When a foreigner applies for a green card based on marriage to a U.S. Citizen, and the marriage occurred within 2 years of the application, the foreigner gets a 2-year green card. If the marriage was more than 2 years prior to applying, the green card will be a 10-year green card.
For those with a 2-year green card, the couple, if still married, should file an I-751 jointly within 90 days of the expiration of the 2-year green card in order to get a 10-year green card. If the couple is divorced prior to the expiration, the foreigner can file I-751 alone with a request for a waiver of the joint filing. The foreigner should document the I-751 with proof that the marriage was entered into in good faith. The evidence submitted should be documents obtained AFTER the 2-year green card was issued - bills with both names, joint taxes, joint insurance, joint lease, mortgage, pictures etc. An affidavit explaining why the marriage did not work out is recommended. The affidavit should be consistent though with the foreigner's answers to the officer's questions at the interview.
Sometimes, a couple is not divorced but are separated and the foreigner's 2-year green card is about to expire. Until recently, the Immigration Service held that separated, but not yet divorced, foreigners with 2-yr green cards were ineligible to file I-751 alone. These people were thus at risk of being placed in removal proceedings.
A recent memorandum issued by Donald Neufeld changed this policy. Now, these foreigners can file either a joint petition or a waiver post separation but prior to divorce.
If a waiver is filed post separation but prior to final divorce:
Petitioners will receive a Request for Evidence ("RFE") requiring that the divorce be finalized in 87 days.
If the divorce is finalized before the response to the RFE is due, petitioners may submit the divorce decree in response to the RFE and the case will be processed as a waiver case.
If petitioners are not divorced in time to respond to the RFE, they will receive a notice revoking the green card status, and an Notice to Appear ("NTA" - which initiates the removal proceeding and schedules you with the Immigration Court) will be issued.
If a joint petition is filed post separation but prior to final divorce:
Petitioners will receive an RFE asking for a divorce decree, and when it is submitted, petitioners must then request that their case be converted to a waiver case. This will avoid the need to refile the case as a waiver. When this occurs, the case may or may not, depending on the strength of its merits, be referred for interview.
If petitioners are not yet divorced when the RFE response is due, then the case will be evaluated on the strength of the bona fides of the marriage. USCIS will then approve, deny, or interview.
It is suggested that at the initial filing, the cover letter should explain these changes and the filing should have attached good faith marriage exhibits. Attaching a copy of the memo is also recommended.