Conditional Residence After Divorce: Proving a Bona Fide Marriage with Form I-751
When a non-citizen seeks to receive a green card through marriage to a U.S. citizen, they may be eligible to adjust status in the U.S. without leaving the country. But eligibility depends on several factors, including the nature of the relationship, the applicant’s immigration history, and whether a visa is available. Additionally, if the marriage is less than two years old at the time of approval, the applicant will receive conditional permanent resident status and must later file Form I-751 to remove those conditions.
Ruth Lane & Associates, PLLC helps clients prove their marriage was real—even after it ends. USCIS carefully reviews divorce-based Form I-751 filings because it must decide whether the marriage was genuine or entered solely for immigration purposes.
Applicants must be ready to present strong, organized evidence that the relationship was authentic. This blog explains the adjustment of status process and what happens if a couple divorces before the I-751 is filed.
Understanding Adjustment of Status Through Family-Based Petitions
U.S. immigration law allows certain individuals to apply for lawful permanent residence through adjustment of status (AOS), which means they can get a green card without leaving the U.S. To be eligible, the applicant must:
Be the beneficiary of an approved or concurrently filed Form I-130 (Petition for Alien Relative), and
Meet the criteria for adjustment under INA § 245(a) or INA § 245(i).
Concurrent Filing for Immediate Relatives
If you are the spouse, unmarried child under 21, or parent of a U.S. citizen, and you entered the U.S. legally (even on a tourist or student visa), you may be able to file Form I-130 and Form I-485 together. This is known as concurrent filing, and it's allowed under INA § 245(a).
There is no wait for a visa number in these cases, and even if your authorized stay has expired, you can still adjust status as long as your initial entry was lawful.
Family Preference Categories
If you're not an immediate relative (e.g., you're the adult child or sibling of a U.S. citizen or the spouse of a green card holder), you must wait until your priority date is current. Additionally, you can only adjust status if you:
Have maintained lawful presence in the U.S., or
Are eligible under INA § 245(i) (you had a qualifying petition or labor certification filed on or before April 30, 2001, and you meet physical presence requirements).
Applicants not eligible to adjust in the U.S. must complete consular processing abroad.
Adjustment Under INA § 245(i)
This provision allows certain long-term residents to adjust status despite unauthorized entry or unlawful presence, if:
A petition was filed on or before April 30, 2001, and
The applicant was physically present in the U.S. on December 21, 2000 (if the petition was filed after January 14, 1998).
Why Conditional Residency Requires Additional Proof
Conditional residence exists as a safeguard against marriage fraud. For marriages less than two years old at the time of green card approval, USCIS grants conditional permanent resident status to guard against fraud. To receive a permanent green card, conditional residents must affirm the validity of their marriage by filing Form I-751 within 90 days before their green card expires. When the couple is still married, they file jointly. But if a divorce occurs, the applicant must file alone and request a waiver.
In waiver cases, USCIS looks even more closely at whether the marriage was entered in good faith. The burden shifts entirely to the applicant to demonstrate the relationship was real, even if it later ended in separation or divorce.
Filing Form I-751 After Divorce
Form I-751 is used to remove conditions on residence and must include a waiver request when the applicant is no longer married. USCIS permits multiple grounds for filing with a waiver, including divorce, abuse, or extreme hardship. For divorce-based waivers, the applicant must submit proof of both the divorce and the bona fides of the marriage.
When a divorce occurs before Form I-751 is filed, the applicant must file Form I-751 with a waiver, submit evidence that the marriage was genuine, and show proof that the divorce is final (or in progress, if not yet finalized).
The form must still be filed on time, even if the divorce isn't finalized. In such cases, applicants can submit evidence that divorce proceedings are underway, then supplement the file once the judgment is issued. Filing late without cause can trigger automatic termination of status and removal proceedings.
Proving the Marriage Was Bona Fide
When the couple is no longer together, USCIS demands compelling evidence that the relationship was genuine. The focus is on what occurred during the marriage, not on why it ended. That means showing the couple lived together, built a shared life, and intended to remain married. Applicants must present consistent records and personal evidence that reflect a life shared as spouses during the conditional period, including the following types of documents:
Shared lease or mortgage documents: Proof of joint residence, such as rental agreements or deeds.
Joint financial records: Bank statements, credit card accounts, tax returns, or insurance policies.
Photos and travel records: Pictures taken together and documents showing shared vacations or holidays.
Affidavits from family and friends: Letters from people who knew the couple and can speak to the relationship.
Mail and communications: Texts, emails, or mailed correspondence that show regular contact.
The more detailed and varied the documentation, the easier it becomes to show that the marriage was entered in good faith. Even if the couple eventually separated, proof of a genuine relationship during the conditional period remains the central issue for USCIS.
Addressing Red Flags and Inconsistencies
USCIS looks for signs of fraud or contradictions that undermine an applicant’s story. Red flags include short durations of cohabitation, a history of prior immigration-based marriages, or inconsistencies between statements and documents. Addressing these issues directly can help prevent delays or denials.
Applicants should not try to conceal facts or assume certain details are irrelevant. It’s better to explain unusual aspects—like early separation or limited financial accounts—than to let USCIS draw negative conclusions. Written explanations and legal argument can provide helpful context.
When to File Form I-751 With a Divorce Waiver
Conditional residents must file Form I-751 during the 90-day period before their green card expires. If the couple divorces before this window, the resident may file early with a waiver. If the divorce is still pending, the form can still be submitted—provided there is proof the process has begun. USCIS requires clear documentation of your marital status and timing:
If already divorced: Submit the I-751 with a copy of the final divorce decree and evidence of a bona fide marriage.
If divorce is pending: File during the 90-day window with proof that divorce proceedings are in progress and evidence of a good faith marriage.
If divorce occurs after filing jointly: File as soon as possible. Send a written update and request to convert the petition to a waiver.
If late: Provide a written explanation and supporting documents for the delay when submitting Form I-751.
Filing late without explanation or filing too early without proof of a pending divorce can result in denial. Timing and documentation are critical when seeking a divorce-based waiver.
What Happens if USCIS Requests an Interview
Even in divorce-based I-751 cases, USCIS may schedule an interview to ask additional questions. The applicant must attend alone, and the interview typically focuses on the relationship's history, shared experiences, and timeline of events. Being prepared and honest is critical during this stage.
Officers may ask for clarification about how the couple met, what living arrangements were like, and why the relationship ended. If the applicant’s answers conflict with earlier statements or documents, that can lead to denial. Legal representation during the interview can help applicants feel more confident and prepared.
Alternatives if a Joint Filing is Not Possible
Some applicants are separated or going through divorce but haven’t yet finalized the process when it’s time to file. In these situations, USCIS may allow a late submission of the final divorce decree after the I-751 is filed. However, the waiver request must still include proof that divorce proceedings are active and that the marriage was real.
When divorce isn't an option—for example, if the spouse is abusive—applicants may file based on battery or extreme cruelty. In such cases, additional documentation is required to support the claim. This might include police reports, counseling records, or protective orders.
Filing Form I-751 Based on Abuse or Cruelty
If a conditional resident has experienced abuse or extreme cruelty by their U.S. citizen spouse, they can apply for a waiver of the joint filing requirement. This option is available regardless of marital status and does not require the couple to remain married or divorced at the time of filing.
Applicants must show that the marriage was genuine and that they were subjected to abuse during the relationship. Evidence such as police reports, protective orders, medical records, or therapist letters can support the claim. These petitions are confidential and are reviewed with care by USCIS officers.
What to Do if Form I-751 is Denied
A denial of Form I-751 can have serious consequences. Conditional permanent resident status may be terminated, and USCIS can begin removal proceedings. However, denial does not automatically result in deportation. The applicant has the right to present their case again before an immigration judge.
If USCIS denies the petition due to lack of evidence or perceived fraud, it may still be possible to succeed in court by offering more comprehensive documentation. A denial is not the end of the process—but it makes legal representation even more important.
Avoiding Common Mistakes on Form I-751
Mistakes on Form I-751 can lead to delays, RFEs (Requests for Evidence), or denials. Applicants should carefully review the form and supporting documents before submitting. Common issues to avoid include:
Failing to submit enough evidence: Sparse documentation makes it harder to prove a bona fide marriage.
Leaving parts of the form blank: Missing information can trigger automatic rejection or delay.
Not including a waiver request: If filing alone, applicants must check the correct waiver box.
Missing deadlines: Late filings without explanation may result in automatic denial.
Filing Form I-751 after divorce is more difficult, but it is possible with proper preparation and thorough documentation. Avoiding these mistakes can make the process smoother and increase the likelihood of approval.
Contact Ruth Lane & Associates, PLLC
If you're a conditional resident facing divorce and need help with Form I-751, Ruth Lane & Associates, PLLC can guide you through the process. We assist clients across Texas, including Bexar County, Harris County, Travis County, Dallas County, and Tarrant County.
We can guide you through Form I-751 and help you prove your marriage was bona fide—even after it ends. Contact us today to discuss your next steps.