Understanding the I-751 Petition While Separated or Divorcing

For many immigrants, obtaining a conditional green card through marriage is the first step toward permanent residency. But what happens when the marriage breaks down before the conditions on your green card are removed? If you’re navigating a separation, a divorce in progress, or a finalized divorce, it’s essential to understand how to approach Form I-751, Petition to Remove Conditions on Residence, to maintain your lawful status in the United States.

USCIS requires conditional residents to file Form I-751 within the 90-day window before their green card expires. Normally, this form is filed jointly with your U.S. citizen or lawful permanent resident spouse. However, if your relationship is ending, you still have options through careful timing and the right legal strategy.

Still Married but Separated: Can You File I-751?

If you are still legally married but separated, you can file a joint I-751 petition, as long as your spouse is willing to cooperate. USCIS recognizes that physical separation does not necessarily mean a marriage was fraudulent or not entered into in good faith. In such cases, you should explain the circumstances of your separation in detail, including your intent at the time of marriage. Supporting your filing with legal references such as Matter of Mendes and the April 3, 2009 Neufeld Memorandum can strengthen your case by showing that the marriage was bona fide despite current difficulties.

USCIS officers are trained to evaluate the intentions behind the marriage at the time it was entered into, rather than simply relying on whether the couple is still living together. It is not uncommon for couples to file a joint I-751 while living apart, especially in cases involving temporary separation or irreconcilable differences that arose after years of shared life.

Divorce Filed but Not Finalized: Can You Still File I-751?

What if you’ve already filed for divorce, but the court has not finalized it yet? USCIS policy currently allows individuals in this situation to file an I-751 with a waiver request, based on the good faith nature of the marriage that has ended or is ending. You do not have to wait until the divorce is finalized. You may proceed with filing during the standard 90-day window before your green card expires. Simply request the waiver based on termination of marriage and explain that the divorce is still in progress.

However, timing is critical. After you file, USCIS typically issues a Request for Evidence (RFE) asking for a copy of the final divorce decree. In most cases, you will be given 87 days to respond. If your divorce is finalized within that time frame and you submit the decree, your petition can continue without issue. But if you are unable to complete the divorce and provide proof within that window, your I-751 petition will likely be denied. You would then need to file a brand new I-751 petition, pay the filing fee again, and potentially face complications with your lawful status in the meantime.

In tight situations, consider submitting court documents that show progress in the divorce proceedings and a cover letter explaining the anticipated timeline. While USCIS prefers finalized documents, officers may consider ongoing efforts if clearly documented and timely.

Divorce Finalized After Filing Joint I-751: What Happens Now?

Another common scenario is where a jointly filed I-751 is already pending, but the couple divorces before the petition is adjudicated. In this case, you do not need to refile your petition. USCIS permits petitioners to convert a joint I-751 into a waiver-based filing, saving both time and money.

To do this, submit a written request to USCIS asking to convert the petition to one based on the termination of marriage. Include a copy of the final divorce decree and reference the April 2009 Neufeld Memorandum, which specifically supports this type of conversion. As long as you provide the required documentation, USCIS will continue processing the original petition without requiring a new filing fee.

This conversion preserves your original filing date and protects your continuity of status, both critical factors if you later intend to file for naturalization.

Understanding the Good Faith Marriage Waiver

The good faith marriage waiver is one of the most important legal protections for immigrants whose marriages have ended. It is available to individuals who entered into a bona fide marriage that was later terminated through divorce or annulment. To qualify, you must demonstrate that your marriage was genuine at its inception, even if it eventually broke down.

Strong documentary evidence is key. This can include joint tax returns, lease agreements, photos from the relationship, correspondence, and affidavits from friends or family members. USCIS understands that not all marriages last but what matters most is that your intentions were honest and in good faith when the relationship began.

The Importance of the Neufeld Memorandum

The April 3, 2009 Neufeld Memorandum remains a vital source of guidance for USCIS adjudicators and immigration attorneys alike. It clarifies that individuals may file an I-751 waiver even if their divorce is still pending, and that a joint petition can be converted to a waiver-based filing if the marriage ends while the petition is pending. This memo is especially useful when responding to RFEs or submitting waiver requests, and attaching it can help demonstrate that your petition complies with current USCIS policy.

Final Thoughts: Divorce Doesn’t Have to Derail Your Green Card

Going through a divorce is difficult enough without the added stress of an expiring conditional green card. Fortunately, USCIS provides several pathways to remove the conditions on your residence, even if your marriage ends. Whether you are separated, going through a divorce, or already divorced, the law recognizes your right to remain in the U.S. as long as your marriage was entered into in good faith.
If you are facing any of these circumstances, it is critical to act promptly, maintain strong documentation, and be strategic in your filings. Delays or incomplete submissions can lead to denials and unnecessary legal hurdles.

At HBM Law Offices, we routinely help individuals file I-751 divorce waivers, convert joint petitions, and respond to RFEs with the right evidence and legal support. If you are unsure about your options, we invite you to schedule a consultation so we can guide you through the next steps with confidence and clarity.