Filing the I-751 Petition When Separated

By | September 21, 2010

When a foreigner marries a U.S. citizen and is granted an I-551 Permanent Resident green card, often the card is only good for two years.  Why?  Because they were married less than two years when the card was issued and the U.S. government wants to monitor their case to see if the marriage lasts. When a two year card is issued, it is called “conditional.”

In order to get another card that is not “conditional,” this time for ten years, the Permanent Resident (who is referred to as a “Conditional Permanent Resident”) must file an I-751 Petition letting the U.S. government know how the marriage is going.

Unfortunately, the U.S. government only gives the foreign national in this situation two choices:  either file the I-751 Petition as “married” or file the I-751 Petition as “divorced.”  The only exception to this rule is when there is domestic violence in the marriage.  Otherwise, the I-751 cannot be filed as “separated” or “taking a break” or “trial separation.”   Unless an exception applies, to successfully get a ten year I-551 card granted, the couple either has to be still married (and living together) or officially divorced.


Each of the 50 states has its own divorce laws.  Most of them require that the couple first file the divorce paperwork, and then wait 6 months before the final divorce paperwork will be signed by the Judge.  But what if your I-751 is due before the divorce becomes final?

File for the Divorce in Court

It is definitely not a good idea to file the I-751 Petition as if you are still married when you don’t live together anymore.  It is considered fraud if you lie on the I-751 Petition and state that you both live at the same address.  There is a legal way to deal with this situation and still be granted your ten year green card.

If the divorce will not be final until after the day the I-751 Petition is due (which is the expiration date on the I-551 card) then it is best (in most cases) to file the I-751 Petition late — after the divorce is final.  The final divorce should be attached to the I-751 Petition, along with many documents proving that the marriage was real.

The rules say that the USCIS may excuse an untimely filing of a “jointly filed” (both spouses still married and living together) I-751 ONLY if it is accompanied by a reasonable explanation demonstrating extenuating circumstances (see INA 216(d)(2(B)).

However, the rules don’t specify a filing period for an I-751 filed by one spouse (called a “waiver request I-751 Petition”) but it is still important to include a reasonable explanation demonstrating extenuating circumstances. In my experience, the failure to file any I-751 Petition on time will be evaluated by the USCIS Officers, so it is very important to include a reasonable explanation demonstrating extenuating circumstances.

Is waiting for the divorce a reasonable explanation? It’s hard to say – most of the time.  Each case is different and in my experience the reasonable explanation must be very carefully written, with assistance by someone like an Immigration Attorney who specializes in I-751 Petitions who reads all the Immigration Judge’s I-751 denial opinions and knows what the legal definition of “reasonable.”


I know, this puts you and your spouse in quite a predicament.  What if you just need a time out to make some decisions?  What if the marriage might possibly work, given a short period of separation?  Unfortunately, you don’t have the time or the luxury for a long decision making process.  The bottom line is that the I-751 Petition must be filed in order to get your ten year card issued.  I have seen a few couples who were separated get a divorce for the I-751 Petition only to reunite later.


There are many published regulations, in official “Memorandum” form that discuss the I-751 Petitions.  The law is not in one place.  The most recent were published in 2009 and are entitled:

  • I-751 Filed Prior to Termination of Marriage, Donald Neufeld, April 3, 2009; and,
  • Adjudication of Form I-751, Petition to Remove Conditions on Residence Where the CPR Has a Final Order of Removal, Is in Removal Proceedings, or Has Filed an Unexcused Untimely Petition or Multiple Petitions, Donald Neufeld, October 9, 2009


Divorced Father

I know you are smart, and there are many things you do on your own:  use turbo tax for your tax returns, perform your own car tune ups and remodel your home — all can be done on your own.  If you make a mistake, it can be fixed.  But if you want to stay in the United States, don’t put your Permanent Residence in jeopardy – hire an expert for this one. It’s definitely not worth saving the money and doing it yourself.

Danielle Nelisse practices immigration law in San Diego California.

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