People who receive permanent residence based on a new marriage receive a green card good for two years. Within 90 days of the end of the two year period, the couple must file a form I-751, a petition to remove the conditions upon residence.
It is a fairly simple thing to file if the couple is still together. You file proof that the marriage continues, and CIS will either grant the permanent green card or call you in for an interview.
It is a fairly simple thing to file if the couple is divorced. The alien needs to file proof that the marriage was real, and CIS will most likely call the alien in for an interview.
BEWARE — if you divorce within two years of gaining your lawful permanent residency, CIS may presume that your marriage was fake, and the burden will be entirely on you to show that it was real. If you divorce more than two years after you got your residency, it is presumed that your marriage is real, and the burden is on the government to show that it was false if they want to take your green card away.
The problem with I-751s has always been that CIS does not know what to do when you file as a married person and then divorce prior to your I-751 interview. Tampa CIS’s view has been recently that your joint I-751 must be denied before you can then file a new I-751 on your own. Now a memo from CIS HQ (Neufeld, Acting Assoc. Director) shows that a joint petition may be changed to a waiver petition by request of the alien. This commonsense view is long overdue, and actually returns CIS to the policy INS had from 1999 – 2002 (or thereabouts).
This change change change would be comical if it did not affect so many people’s lives. I have had clients who filed three separate I-751s before CIS would give them a decision on their marriage. I also know too many who never knew their joint petition was denied because the notice denying the petition and the notice sending them to Immigration Court was sent to the marital address (where they no longer lived). They learned about the denial when ICE came to arrest them (because THEN CIS knew where they lived).
Can we not have a form that allows married couples and unmarried aliens to petition for removal of conditions, that does not have all these loopholes and “gotcha’s”? It should be enough to keep the green card if an alien, married or unmarried, can prove that the marriage was real.
The new memo helps some, but we really need a new form.