This is a common consultation scenario. The conditional resident immigrant has a 2 year green card because their marriage to their US citizen spouse was less than 2 years old at the time the green card was granted (approved). The conditional LPR will lose his or her green card if s/he does not petition with their spouse (a joint 751 filing) during the 90 day period prior to the green card’s expiration, with limited circumstances (waivers).
When the Marriage Is Ending
If the couple can no longer file jointly, the conditional resident may qualify to request a waiver of the joint filing requirement. Current I-751 waiver bases include a marriage entered in good faith that later ended through divorce or annulment, battery or extreme cruelty, and certain extreme-hardship circumstances.
The right strategy depends on the facts. Filing jointly when the marriage has already broken down can create problems if the petition no longer accurately reflects the relationship or if the U.S. citizen spouse later refuses to participate.
Likewise, filing a waiver requires more than simply showing that a divorce occurred. USCIS still examines whether the marriage was entered into in good faith and whether the evidence supports the particular waiver being requested.
There Is No “Perfect” Time to Divorce
I often get the question: how long do you have to wait after you first get your green card before you leave your US citizen spouse if you know it’s not working out? First of all, there’s no magic number but if you leave in the first six months, USCIS will flag the filing for interview because of the early separation. An interview could flesh out whether you married your spouse for immigration purposes, not love or other reasons (some people marry for financial and companionship reasons, hey, it’s allowed as long as achieving an immigration benefit is not the main reason for the marriage). Note, however, there is no fixed number of months that you remain together that proves or disproves good faith intent. The timing of a separation or divorce is one fact among many. A genuine marriage can end quickly, and a troubled marriage can continue for years.
The more important questions are what actually happened, what documentation exists, whether the couple’s history is consistent with the immigration filings, and which I-751 filing strategy fits the facts.
It’s a matter of discretion and credibility based on the documents you provide which may even include a statement from you explaining the early break-up. The officer reviewing the petition will be looking for joint documents that give evidence of accounts in both of your names that are active and remain active before and after your green card interview. The longer those are open the better. Don’t just have a joint bank account open, for instance, if both spouses are not going to use it regularly. CIS is looking for commingling of assets; that means, you deposit your salary or paycheck into the joint account, not just $100 a month so you can say you have a joint account. And there are many types of accounts you can use to prove that financial commingling besides a bank account – such as credit cards that separate out the transactions by the individual spouse, insurances, bills that you are both responsible for, and other debts you jointly owe. CIS is looking for typical documents they believe a married couple should have. But not every genuine marriage organizes finances or daily life in the same way. Separate bank accounts or an unconventional financial arrangement do not automatically mean the marriage was not bona fide. The important question is whether the evidence, viewed as a whole, tells a credible and consistent story of a real marital relationship
But, let’s say you stick it out and file the petition to release the condition on residency with your spouse and then split up right away or file for divorce the minute it’s approved. If you ever apply for citizenship, the citizenship officer will know when you got divorced because it’s stated on your naturalization application. Later naturalization can cause USCIS to review the underlying permanent-residence history, so inconsistencies or unresolved questions about the original marriage can matter.
Again, life happens, and true relationships can deteriorate quickly but you’re going to have to document and explain the dates so be careful. If your marriage is really falling apart (whether abusive or just because of “irreconcilable differences”), you may be better off filing a waiver based on abuse or showing you were in a bona fide marriage that you entered into in good faith and make your case. There are multiple types of waivers that may fit your situation – Current Form I-751 recognizes, among other bases, a good-faith marriage that ended in divorce or annulment, battery/extreme cruelty, and extreme hardship.
Know that staying together on paper could hurt you if you file together can be risky, especially if your spouse refuses to show up for the interview if another interview is scheduled!
So, to make a long answer, well … long, there’s no perfect time to split up; it all depends on your case and what your story is and how believable you are if push comes to shove and you have to appear for an interview. As always, talk to an attorney who can look over the documents you do have and who can assess your options (waiver or joint filing).
When an I-751 Case Needs More Than a Form
When divorce, separation, abuse, inconsistent records, limited joint documentation, or a difficult relationship history complicates the case, the issue is often not simply completing Form I-751. It is determining which filing basis applies, identifying the evidence that matters, and presenting the history in a way that accurately explains what happened.
