I-751 Removal of conditions – Procedures for Parties Separated but Not Yet Divorced

This is a great tip from AILA, many applicants are often confused about the I-751 receipt number. Be aware that the receipt number listed on a receipt notice for Form I-751, Petition to Remove the Conditions of Residence is not the actual receipt number for that case. In fact, if the receipt number shown on the receipt notice for the I-751 is tracked through the USCIS online case status, an error message will appear. The correct receipt number for an I-751 is listed on the I-751 biometrics notice.

Also a recap for the issue of Procedures for Parties Separated but Not Yet Divorced. Until last year, USCIS held that separated, but not yet divorced, conditional residents were ineligible to file I-751 waivers. According to a USCIS memo, things have changed.

The Memo provides that:
If a waiver is filed post separation but prior to final divorce:
* Petitioners will receive an RFE requiring that the divorce be finalized in 87 days.

* If the divorce is finalized before the response to the RFE is due, petitioners may submit the divorce decree in response to the RFE and the case will be processed as a waiver case.

* If petitioners are not divorced in time to respond to the RFE, they will receive a notice revoking CPR status, and an NTA will be issued.

If a joint petition is filed post separation but prior to final divorce:
* Petitioners will receive an RFE asking for a divorce decree, and when it is submitted, petitioners must then request that their case be converted to a waiver case. This will avoid the need to refile the case as a waiver. When this occurs, the case may or may not, depending on the strength of its merits, be referred for interview.

* If petitioners are not yet divorced when the RFE response is due, then the case will be evaluated on the strength of the bona fides of the marriage. USCIS will then approve, deny, or interview.

In most cases where divorce is pending or the parties have separated, the U.S. citizen spouse will not agree to sign a joint petition. Thus, the conditional resident will have no choice but to file a waiver and hope that his or her pending divorce becomes final within or close to 87 days after filing.

It is also important to note that the Memo states specifically that USCIS may not deny a petition solely because the spouses are separated and/or have initiated divorce or annulment proceedings.