Can I file Form I-751 to remove conditions if I'm getting divorced?
Yes — you can file an I-751 with a divorce-based waiver under INA § 216(c)(4)(B), but the evidentiary burden shifts to proving the marriage was entered in good faith despite the divorce.
A conditional permanent resident is normally required to file Form I-751 jointly with the petitioning spouse 90 days before the second anniversary of the green card under INA § 216. When the marriage ends in divorce — or annulment, or before the divorce is final — the conditional resident can file alone under one of three waiver grounds in INA § 216(c)(4): (A) extreme hardship if removed; (B) the marriage was entered in good faith but terminated; or (C) battery or extreme cruelty by the petitioning spouse.
What "good faith but terminated" actually requires
Under 8 C.F.R. § 216.5(e)(2) the applicant must prove the marriage was entered into in good faith at inception — the later breakdown is not held against them. USCIS reviews the same evidentiary categories as a first-time I-130: joint finances, joint residence, photographs over time, sworn affidavits. The difference is that the record is now historical, not current, so reconstruction matters: bank statements may need to be subpoenaed, witnesses tracked down, and the divorce decree itself must be a final judgment (a pending dissolution is not enough, though USCIS now accepts a "good cause" filing while the divorce is pending and adjudicates once it is final).
The most common pitfall
Conditional residents often wait until the joint I-751 deadline passes and only then realize they need a waiver. Once out of status, ICE can place them in removal proceedings, and the I-751 must be renewed before the immigration judge. Filing earlier — as soon as the marriage breaks down, with a request to convert to a waiver — keeps the case in front of USCIS and preserves the work permit and travel document.
How we handle this
We file the waiver-based I-751 with a built-in fallback: if USCIS denies the good-faith waiver, the same packet supports an extreme-hardship waiver and a battery/cruelty waiver where the facts support it. We also coordinate timing with the family-law case so the divorce decree, custody order, and protective order (where relevant) corroborate the immigration record. The goal is one filing, one set of evidence, and one adjudication — not a denial followed by years in removal proceedings.
Frequently asked questions
What is a bona fide marriage in the eyes of USCIS?
A bona fide marriage is a relationship that was entered into for love and a life together rather than just for a green card. USCIS looks for proof like shared financial accounts, joint leases, and testimonies from people who know you both. Providing a variety of documents over a long period helps prove the relationship is genuine.
Can I apply for a green card if my spouse does not meet the income requirements?
Yes, you can still apply if you use a joint sponsor who meets the income guidelines. A joint sponsor must be a U.S. citizen or permanent resident living in the U.S. who is willing to sign the Affidavit of Support. They will share the financial responsibility for the immigrant spouse alongside the petitioner.
How much are the filing fees for a marriage green card?
The government changes filing fees periodically based on their operational costs. You should check the official USCIS website for the current filing fee (check uscis.gov for the current amount) before mailing your application. Submitting the wrong amount will result in your application being rejected and returned to you.
What happens if I receive a Request for Evidence?
An RFE means the officer needs more information to make a decision on your case. You will receive a letter explaining exactly what documents or explanations are missing. It is critical to respond to an RFE by the deadline provided, or your application may be denied for abandonment.
Legal sources
- INA § 216 — Removal of conditional residence (I-751) — INA § 216 · 8 U.S.C. § 1186a
- 8 C.F.R. § 216.5 — Waiver of joint filing requirement — 8 C.F.R. § 216.5