Separated but not Divorced. Navigating the Jointly filed I-751 Petition to Remove Conditions on Residence

UPDATE: Note that I have updated and supplemented this blog with a Part II HERE and a Part III HERE.

On occasion, when it comes time for a conditional permanent resident to file the I-751 Petition to Remove Conditions on Residence (based upon a marriage to a U.S. citizen), the marriage has broken down and the parties have separated or are contemplating divorce. Despite this change in circumstances, it may still be possible to jointly file the I-751 and obtain approval (removal of the conditions on residence) based upon the good faith bona fides of the marriage which existed before the current strain on the marriage.

Since, as the term implies, “jointly” filed petitions must be filed by both parties, going forward with a joint I-751 assumes that even though the marriage is in a weakened state, that both the husband and wife (regardless of which is the US citizen and which is the beneficiary) are willing and able to follow through with the Petition. And if required by USCIS, the parties must also be prepared to appear together at an interview on the I-751 petition where they will have to produce evidence and answer questions about their marriage, including their separation and the circumstances leading up to the breakdown in the relationship.

In the context of a joint I-751 petition, it is well established law that as long as the parties had a bona fide intent to enter into a marriage, subsequent conduct after marriage, no matter how unconventional, does not prove lack of marital intent and cannot be used as the sole basis to deny the petition. See Bark v. INS, 551 F.2d 1200 (9th Cir. 1975); Matter of McKee, 17 I&N Dec. 332 (BIA 1980). In reality, unless there is evidence of fraud or an improper purpose in submitting the petition, the legal focus when reviewing a jointly filed I-751 is only upon the bona fides of the marriage (mainly) at the time it was entered into and whether the evidence demonstrates that the parties had a good faith intention to enter into the marriage. Of course, USCIS will also evaluate the entire marriage, as a whole, as the evolution and development of the relationship after the marriage (ie. whether the parties lived together and for how long, whether they had children, whether they purchased and jointly owned property, etc.) is a clear window into the ultimate intention of the parties and can shed a lot of light on the nature and strength of the good faith nature of the relationship.

Support for this proposition can be found in the Memorandum from U.S. Department of Homeland Security Acting Associate Director Donald Neufeld dated April 3, 2009 which confirms that “USCIS may not deny a petition solely because the spouses are separated and/or have initiated divorce or annulment proceedings.” The Neufeld Memo further confirms that USCIS may approve the I-751 petition and remove the beneficiary’s Conditional Permanent Resident (CPR) status, even if the parties are separated, if:

1. The CPR and petitioning spouse (unless deceased) jointly file an I-751 within the 90 days immediately before the two year anniversary of the date the CPR obtained permanent resident status;

2. The CPR and petitioning spouse appear for an interview; and

3. USCIS determines the following facts are true:

■ The marriage was legal where it took place;

■ The marriage has not been terminated;

■ The marriage was not entered into for the purpose of procuring permanent resident status; and

■ No fee (other than to an attorney for filing assistance) was paid for the filing of the underlying I-130 or I-129F.

Thus, if the married parties timely file the I-751 joint petition within the 90 days immediately before the two year anniversary of the date of the expiration of the conditional permanent residence, the parties appear for interview (or agree to appear), the marriage was legal, the parties have not divorced, and there is no evidence or proof that the marriage was entered into for the purpose of procuring permanent resident status (or that a fee was paid for the filing of the underlying I-130 or I-129F) the law and regulations allow for the approval of the I-751 even though the parties have separated. It should be noted that the separation can occur either before or after the filing of the joint I-751 petition. Again, the key factor in this scenario is that both parties are still willing and able to continue with the joint I-751 petition, even though this may be an emotionally painful and uncomfortable process.

While going forward with a jointly filed I-751 Petition to Remove Conditions on Residence after separation but before divorce may not be an appropriate or advisable strategy for all married couples in this situation, it does offer a way forward for those couples who still share the common desire to follow through with what they started and get the condition removed from the foreign national spouse’s conditional residence.

Finally, I would like to point out that many of my immigration clients are not even from the South Florida area. Often times, because of this blog post on I-751’s or through other ways that prospective clients find me, I am hired to work with and assist clients in other states. So please keep in mind that because I am a licensed Immigration lawyer that my representation may extend outside of the State of Florida and into every state. Indeed, I can and do represent clients located in any State. This is one of the benefits of being a U.S. Immigration Lawyer. Because the laws are national in scope, we can represent clients in all 50 states in the U.S.

If you need legal assistance with the filing of your I-751 Petition to Remove Conditions on Residence or have any have questions about the timing of filing your joint I-751 petition, contact South Florida Immigration Lawyer Sean D. Hummel and schedule a consultation: (954) 385-3111.