More Options for Conditional Permanent Residents with Marital Problems  Posted Aug 07, 2009
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The USCIS recently issued a memorandum providing more options for the filing of the required I-751 form requesting removal of the conditions on residency. Conditional permanent resident status is given to individuals who receive permanent residence (green card) status via a recent marriage to a U.S. citizen. The change in procedures involves situations in which a divorce is in process or in which a divorce is finalized after the I-751 filing. The change addresses some long-standing problems and provides more options for conditional permanent residents who are in troubled marriages.
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Background of Conditional Residency
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If a marriage has been less than two years in duration at the time permanent residence is granted, the status of the foreign national spouse then is "conditional." The condition is that it expires within two years, unless the Form I-751 is filed, at the appropriate time, to request that the conditions be removed. If the I-751 is granted, the foreign national spouse becomes a permanent resident without any conditions. 
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The conditional status is an anti-fraud measure and is necessary to provide updated proof of a bona fide marriage in support of the I-751 form. This form can be filed jointly, with both husband and wife signing. Alternatively, it is possible to request a waiver of the joint filing requirement, if the marriage was entered into in good faith, but was subsequently terminated. It is also possible to obtain a waiver if the marriage was entered into in good faith, but there was abuse and, separately, it is possible to request a waiver if removal of the foreign national spouse would result in extreme hardship.
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Prior Conditions in Order to File I-751

For many years, to satisfy conditions for filing the I-751, it was necessary to either file jointly OR to qualify for a waiver request at the time of filing. This created a serious problem for individuals whose marriages were troubled. If the U.S. citizen spouse was unwilling to sign the I-751, but the couple was still legally married, there often was no way to properly file the I-751 when needed. Absent the joint filing, it was necessary to have a basis for a waiver request. As explained above, waivers require marriage termination (divorce), abuse, or extreme hardship. This long-standing policy was clarified in a 2003 memo (PDF 104KB).
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This is a common problem since the I-751 must be filed before the two years of conditional residency expires. Generally, it can be filed up to 90 days in advance of that point. If a marriage encounters problems, it is often not possible to divorce without the couple first being separated for an extended period. (Legal requirements for separation prior to being granted a divorce vary from state to state, with common timeframes ranging from six months to two years.) Couples sometimes separate and go through a period of months when they decide whether they can resolve their problems, or if divorce is to be pursued. Thus, many individuals find themselves in marital limbo when the I-751 is due to be filed. In the past, unless the couple was still amicable, so that the U.S. citizen spouse would sign the form, the foreign national could not file, and then the conditional status would terminate.
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Flexibility of New Procedures
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Waiver Requests Filed Prior to Marriage Termination :
The recent memo, issued by Donald Neufeld, Acting Associate Director, and dated April 3, 2009 (released in July 2009), addresses the lack of a category for those who married in good faith, but are separated or in the process of divorce. The memo instructs USCIS officers who review these cases to issue requests for evidence (RFEs) if they encounter I-751s requesting waiver of the joint requirement, if the couple was still legally married at the time of the filing. The RFE has an 87-day period for response and requests proof of termination of the marriage.
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If the foreign national can respond to the RFE within the allowed timeframe, providing proof of the termination of the marriage in the form of a divorce decree or annulment, then the case can be approved. This is a significant variation from the general immigration requirements that an individual must be eligible for the benefit requested at the time of filing. This is one situation in which a slow processing time may work to the advantage of the foreign national, as it may provide enough time to finalize a divorce.
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Joint Filings with Troubled Marriages :
Another variation with I-751 filings involves couples who file jointly, but are legally separated or in the process of divorce. The USCIS reviews these cases carefully, as they view this as a potential indication that the marriage may not have been bona fide at its inception. In these cases, the USCIS will issue RFEs with 87-days for response. This RFE will request a copy of documentation proving termination of the marriage, and a request to have the joint petition treated as a request for a waiver of the joint filing. This allows the foreign national to obtain the waiver, if the marriage has been terminated, without having to re-file the I-751. Previously, a new filing would have been required.
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If there is no response to the RFE, or the response does not establish that the marriage is terminated, the USCIS will adjudicate it as a joint petition. The result will depend on the evidence of bona fide marriage. The case may be forwarded to a USCIS field office for an in-person interview to determine if it was bona fide at the time when the parties entered into the marriage.
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Conclusion
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The changes in the I-751 procedures are a substantial improvement. It is often the case that a marriage is genuine at the outset, but ultimately does not survive. The new procedures avoid the need to speedily obtain a divorce before the I-751 filing deadline, if the marriage is not working for the parties. It also relieves some of the pressure to make a decision regarding whether to attempt reconciliation or move forward with a divorce within a tight, imposed timeframe. We at the Murthy Law Firm appreciate the clarification and the additional options to file the I-751 that will prove helpful to foreign nationals married to a U.S. citizens or lawful permanent residents who find themselves the difficult situation of failing marriages.