If I file a joint I-751 with my spouse and we separate (but are still married), should I file a Change of Address with USCIS?

When spouses join in the filing of an I-751 petition and then separate, but stay married, the question arises as to whether they should file a Change of Address with USCIS. My answer to this question is usually that it depends upon whether: (1) the parties have physically separated and are living in different residence locations; (2) if the couple has physically separated, the separation is temporary; and/or (3) if the parties are living in different residence locations and the separation does not appear to be temporary, whether it was the Immigrant or the U.S. citizen/permanent resident sponsoring spouse that moved out of the marital residence.

First of all, U.S. Immigration law requires that all non (U.S.) citizens notify USCIS of any change of address within 10 days of the change. This is generally done by filing form AR-11 (Alien’s Change of Address Card). Thus, the rule is that if a joint I-751 immigrant petitioner has moved and relocated to a residence address that is different from the one that was listed in the I-751 petition, then the immigrant should file an AR-11 Change of Address form with USCIS. However, because filing a Change of Address form in the context of a pending joint I-751 petition may cause delays in processing and subject the case to greater USCIS scrutiny, before automatically filing an AR-11 form, I take the time to go over the facts and circumstances with my clients to make sure that there really has been a change of circumstances which requires that they file a Change of Address form with USCIS.

As to the first consideration, whether the parties are physically separated, I raise this question because sometimes I find that the parties are simply taking a break from the marriage, are sleeping in separate rooms in the marital residence, and have reached an understanding with each other that they are “separated.” And quite naturally, the concern arises as to whether or not they have to disclose this separation to USCIS, since they are feeling the change of circumstances in their relationship. My short answer is usually “no”, that they do not have an affirmative obligation to notify USCIS that they are having marital difficulties and are living in separate rooms in their home. As long as the residence address remains the same, there is no obligation to notify USCIS under these circumstances.

In regards to the second consideration, whether the separation is temporary, I ask this question because sometimes I find that even when the couple appears to be physically separated, the “separation” is actually is temporary. For instance, one spouse might report that he or she is staying with a friend or a relative for a few days in order to get space and find time to think about their marriage. Unless there is a firm intention to move and relocate to a new address, staying temporarily with a friend or relative while still maintaining the intention to live in the marital residence and maintaining all physical ties to the residence should not be considered to be a change of address triggering the requirement to file an AR-11 Change of Address form.

And finally, if the parties advise that they are in fact physically separated and that the separation does not appear to be temporary, my final question and consideration is whether it was the Immigrant OR the U.S. sponsor who moved out of the marital residence. The answer to this question is critical, since only the Immigrant has the responsibility of reporting a change of address (within 10 days of moving) to USCIS. Notably, while we refer to a petition filed by an Immigrant and a U.S. citizen (permanent resident) sponsor as a joint petition, a careful review of the I-751 petition itself (and the I-751 Instructions) clearly reveals that only the Immigrant is classified as the “Petitioner,” not the U.S. joint petitioning spouse. This is further supported by the I-797 Receipt Notice for joint I-751 petitions, which only list the Immigrant spouse as the Petitioner (and also as the Beneficiary as well). Thus, it is my belief that the Change of Address requirement only applies to the joint petitioning Immigrant spouse and not to the U.S. sponsoring spouse.

NOTE HOWEVER, that a different question is presented if the parties have physically separated after filing the joint I-751, the separation is not temporary, and then USCIS issues a Request for Additional Evidence. In this situation, my recommendation to my clients is to fully disclose and explain the circumstances regarding the separation and the address change to USCIS. As I have more fully explained in previous blog posts on this topic, separation alone cannot form the basis for the denial of a joint I-751 petition. When this happens, I face this fact head-on with my clients and present the facts AND THE LAW which support the approval of the joint petition. Thus, I go above and beyond to make it clear to USCIS that the parties have separated BUT ARE STILL MARRIED. As I tell my clients, why create a problem (by not disclosing the separation) when disclosing the truth of the separation is not a problem to begin with?

Another related question that some clients ask is whether filing an AR-11 Change of Address form will delay the processing of their joint I-751 petition or otherwise make it harder to get their petition approved. Unfortunately, my answer is usually “yes”, but there is really no way of knowing. Bottom line is that the duty to be truthful and honest must always come first, even if it means having to wait longer, or face a harder path to approval.

If you have separated from your spouse after filing a joint I-751 petition, you would be well advised to seek the advice and counsel of an Immigration Lawyer who has experience with your situation and understands how your case will be processed and viewed by USCIS. If you have questions about your I-751 petition to remove conditions on residence or about how you should deal with separation or a change of address, contact U.S. Immigration Lawyer Sean D. Hummel at (954) 385-3111 or sean@hummelaw.com.