... in response to I-751, posted by Ray on Dec 26, 2004A common I-751 follow-up question many people ask is:
what if we are separated or divorced in less than
24 months or the period of conditional residency?
What is her immigration status? Can she stay in
the US?
In general, the lady spouse has available a
method to stay in the US by filing on her own
the I-751 based on "valid divorce" following
"good faith" marriage. This is one of the
exceptions to the "joint filing" requirement
of the I-751.
Immigration Service just released a Flash Memo
dated 12/27/04 to further clarify this issue,
under different scenarios.
1. If the couple is OFFICIALLY DIVORCED at time of
I-751 filing, then the lady spouse files the
I-751 with fee and marks "d" in Part 2.
2. If the couple has filed a PENDING JOINT I-751
but SEPARATE BEFORE the I-751 is decided, the
lady spouse should notify the Service Center by letter
that she is separated, and Service Center will re-locate
case to local district office for interview.
3. If the couple become OFFICIALLY DIVORCED
while the joint I-751 is pending, the lady spouse
should file a new I-751 with fee and mark "d" in Part 2,
and also request withdrawal of first petition.
4. If the couple are SEPARATED BUT NOT YET
OFFICIALLY DIVORCED at the time I-751 is
to be filed, the lady spouse should mark "d"
on Part 2 of the petition and Service Center
will re-locate case to local district office for
interview.
5. If the couple are SEPARATED AT TIME OF
FILING THE I-751 AS ABOVE AND THE DIVORCE
BECOMES FINAL WHILE I-751 IS STILL PENDING,
the lady spouse should file a new I-751 with fee
marking "d" in Part 2, and request withdrawal of
first petition.
Naturally, all supporting documentation concerning
identity and to show "valid divorce" and "good faith" marriage
must accompany the petition.
Hope that helps.
Good luck to all.
Gary Bala
