Filling form I-751 if you are married but living separately

Facing separation from your spouse who is a U.S. citizen while you are still a CPR (Conditional Permanent Resident) can be stressful and devastating. But, keep in mind that the separation doesn’t have to affect your immigration process if you file the proper forms at the right time. First of all, separation can happen for many reasons, and most states allow legal status. Most importantly, USCIS itself doesn’t require couples to have a court-approved separation. Therefore, after your separation, the next logical step is to file Form I-751 (Petition to Remove Conditions on Residence). We will now go through some important factors that decide whether I-751 gets approved.

Notify USCIS of your change of address

This is a required step because you (as a non-citizen) should inform USCIS of any change of address within ten days of moving. You do this by filing the Form AR-11 (Change of Address). By doing so, you will prevent any suspicion that you withheld something (separation itself) from USCIS during the process. Losing their trust at any point can cause several problems or even the worst-case scenario – denial and your deportation. Even though filing the AR-11 might slow down your I-751 process, it is the only right thing you can do if you plan to become a U.S. citizen.

Should you file the I-751 jointly or separately?

Before filing, you need to decide whether to file I-751  jointly (with your spouse) or separately. The answer is – it depends. Many of our clients presume that getting a divorce is necessary, but the truth is – you should sit down and have a talk with your spouse, asking them if they are willing to participate in the process with you. 

Form I-751 is also called ‘the good faith waiver’ because it allows separation if the couple entered the marriage in good faith and not for immigration benefits. USCIS does not promote divorce as the only option, rather, it is your burden to prove to USCIS that you entered the marriage in good faith.

Requirements you need to meet if this is your case:

• You and your spouse should file the I-751 within 90 days before the second anniversary of you obtaining the permanent resident status;
• Both of you need to appear at the interview (if it is scheduled);
• USCIS has to determine whether your marriage was legal where it took place and whether it has been terminated since then;
• You didn’t enter the marriage just because of the green card 

If these requirements are not met, your I-751 could be denied for lack of evidence. In addition, USCIS needs to be convinced that your marriage was entered in good-faith. You can achieve this by providing USCIS with information on these subjects: children born to the marriage, joint ownership of a property, joint liabilities, travel records, and so on. Keep in mind that by providing this without filing for a divorce, you also show to USCIS that there is a good chance of reconciliation with your spouse. 

On the other hand, if your spouse is unwilling to cooperate during the I-751 process, you should start looking for alternatives. One of them is to file your I-751 separately by yourself, but filing for a divorce is needed in this case. In addition to that, your divorce needs to be finalized in the state court for you to get your I-751 Form approved. If you already filed your AR-11 form, you are on the right track, but having the support and the guidance of an experienced immigration lawyer is crucial because we understand the timings and complexity of each situation.

Will you be scheduled for an interview?

Being scheduled for an interview after filing for the I-751 means that USCIS still needs to check your application to make sure you are not committing fraud. Many of our clients’ I-751, Petition to Remove Conditions are approved without an interview based on heavily documented filing. If you document your I-751 petition properly, including all legal arguments and evidence, you might not even get scheduled for an interview. From what we have seen, individuals get scheduled for an interview when the reviewing officer has additional questions, suspects fraud within your filing, and wants to make sure that what you stated in your file is true and accurate. However, you might randomly get picked for an interview, so make sure to note everything as it is. Avoid including old records of your previous joint life that may appear as if you and your spouse are still living together. Remember that if USCIS at any point realizes your behavior was unlawful, your immigration status in the U.S. will be in jeopardy.  

As you can see, the separation itself is not a good enough reason or ground for USCIS to deny your I-751 petition. However, you don’t want to make unnecessary problems by looking for ways to deceive reviewing officers. Our advice is always to be straight-forward with them. The process of separation is not easy, so don’t try and make your immigration status worse. Once again, the key is to be honest with your partner and communicate in a good manner before filing for I-751. If you conclude that your relationship is irreversibly done, proceed with the process by yourself.

Having an experienced and responsive immigration attorney by your side is helpful. If you found yourself in a situation described above, please contact our Immigration Lawyer in Chicago, Julia Sverdloff, who has helped many couples (and individuals) going through separation during their immigration and naturalization process. Schedule your consultation today.