Please help clarify issues regarding divorce before removal of conditions

[jnjs 0]

I recently talked to a customer service representative at the uscis 800 number. I asked him about if somebody came over on a spouse visa, CR-1 within the first two years, when it comes time to file the I-751, what documentation do they need? I asked if there was a divorce whether that person would need proof that the marriage was in good faith, such as joint bank accounts, etc., and he said no, that since there is a divorce, they would look at it differently, and that those articles of a bona fide marriage would not be expected to be produced in a divorce situation. He said that for the I-751 they require proof that the marriage was legitimate OR the divorce decree, one or the other. This seems to contradict what I have read on this site. Who is right? Is there anybody on this site who has gone through the process who can share their experience?

Another question. He also said that if divorce occurs, the person should wait until 90 days prior to the 2 year anniversary to file the I-751, and should not fill it out beforehand. I told him I read somewhere(this site) that if the person divorces that the I-751 should be filed immediately once divorce is finalized. He said no, if that is done, the form will be sent back due to filing too early. He said the green card has an expiration date on it that is valid REGARDLESS of whether the person divorces or not. This also contradicts what I have read on this site previously, where somebody had said that once divorce is finalized, that person should immediately file the I-751, since the CR-1 is based on marriage. Who is right?

Thanks for your input.

[JimVaPhuong 4,863]

The customer service rep you talked to is sorely misinformed. You should have asked to speak with an immigration officer. The information you were given is contrary to both immigration law and USCIS policy.

The law specifically requires that the I-751 be filed jointly by the USC and immigrant spouses. You can ask for a waiver of the joint filing requirement for one of four reasons; death of USC spouse, divorce, abuse, or extreme hardship. The only one of these four reasons which does not require proof that you entered the marriage in good faith is the extreme hardship waiver. You can read the I-751 instructions for confirmation, page 1 under "Who may file Form I-751?". Except for the extreme hardship waiver, each of the other three begin with "You entered the marriage in good faith". The same terminology is used in INA 216(c )(4)(b). You will be required to prove this.

The requirement to file within the 90 day window before the conditional green card expires applies only if the petition is submitted jointly. If a waiver of the joint filing requirement is being requested then the petition can be submitted as soon as the immigrant is eligible for the waiver. They can be compelled to file the petition early if USCIS can terminate their permanent resident status as a result of their eligibility for a waiver. This wouldn't apply to a VAWA self-petitioner who was still married to the USC spouse, but it DOES apply to someone self-petitioning on the basis of divorce. INA section 216(b)(1)(A)(ii) states that USCIS can terminate the conditional resident status if they determine that the qualifying marriage has been terminated by divorce or annulment. USCIS policy is that they will terminate the conditional resident status if they discover the divorce.