What Happens If We Separate After Jointly Filing I-751: A Guide to Possible Outcomes

By Richard T. Herman, Esq.

1. Introduction: When Love and Immigration Law Collide

I’ve represented thousands of immigrants who built genuine marriages only to see them unravel during the long U.S. immigration process. One of the most painful moments comes when a client says:

“We filed the I-751 together, but now our marriage is falling apart. Can my spouse ruin my case by backing out?”

The short answer:

you may still be able to keep your green card, but timing, documentation, and legal strategy matter enormously.

Key Insight:

USCIS doesn’t automatically revoke your status just because your marriage is failing — but you must act quickly to protect your rights.

2. Understanding the I-751 Joint Petition

Form I-751, Petition to Remove Conditions on Residence is required for anyone who received a two-year conditional green card through marriage to a U.S. citizen or lawful permanent resident. Conditional green cards are issued to married spouses who have been together for less than two years, whether married to a citizen spouse or lawful permanent resident, when their permanent residence is granted. This temporary status is known as conditional residence, which lasts for two years and requires the couple to demonstrate the bona fide nature of their relationship.

The process of filing Form I-751 is necessary to remove these conditions. If you file Form I-751 late, you must include a written explanation for the delay.

You and your spouse must normally file jointly within 90 days before the card expires to prove the marriage was entered in good faith, not to evade immigration law. This is known as the joint filing requirement, meaning both spouses must sign the petition unless a waiver applies. The joint filing requirements specify that the necessary forms must be filed together with your spouse, unless you qualify for a waiver due to divorce, abuse, or hardship.

You must notify USCIS about changes in your marital status during the I-751 process, including divorce. Honesty in notifying USCIS about the change in marital status is crucial to avoid fraud allegations. If you cannot file jointly, filing jointly may be waived under certain circumstances.

Fast Fact:

USCIS received over 200,000 I-751 petitions in FY 2024, and the majority included complex relationship circumstances.

3. What Happens If My Spouse Withdraws the I-751?

A withdrawal means your spouse tells USCIS, in writing, that they no longer support the joint petition. When that occurs, it can complicate your case as a conditional resident.

1. USCIS considers the joint filing invalid.
2. Conditional status automatically terminates (INA §216(c)(2)(A)).
3. A Notice to Appear (NTA) may be issued for removal proceedings. If USCIS suspects marriage fraud, it may start an investigation or initiate removal proceedings.

However, you are not without options. You can immediately file a new I-751 as a “waiver” based on one of the qualifying categories. If your marriage has ended, you may be eligible for a joint filing waiver or a divorce waiver. If your spouse refuses to participate, you may need to file separately, and requesting a waiver from USCIS is a critical step.

Expert Tip:

File the waiver before USCIS makes a final decision — even before your spouse withdraws — to preserve your lawful status.

4. Separation vs. Divorce: Timing Matters

USCIS views separation and divorce differently.

• Separation: You’re still legally married but living apart. If you are legally separated (not just living apart), this can impact your eligibility for certain waivers. USCIS may “hold” your joint case until the divorce finalizes. Honesty about a separation is crucial to avoid accusations of immigration fraud during the I-751 process.
• Divorce: Once final, you can convert to a good-faith marriage waiver. Divorce can raise red flags for USCIS about the authenticity of your marriage.

USCIS will consider the circumstances surrounding your separation, pending divorce, or finalized divorce when making a decision.

Important Note:

If your spouse files for divorce first, don’t panic. You can continue the process by yourself — as long as you show the marriage began in good faith.

5. Filing an I-751 Waiver After Separation

You can convert from a joint filing to a solo waiver at any point before USCIS decides the case. If your permanent resident spouse or petitioning spouse is uncooperative or unwilling to continue, you may need to proceed alone by filing separately. The main goal of this process is removing conditions on your residence. There are three main waiver types. Submitting proof of the final divorce decree is required to proceed with a waiver request after divorce. A finalized divorce changes your filing approach regarding Form I-751.

Need to Know:

You can file more than one waiver type simultaneously if multiple bases apply (e.g., divorce + abuse).

For USCIS policy details, see the Policy Manual Vol. 12, Pt. G.

6. Evidence That Strengthens Your Case

Your credibility and documentation determine success. USCIS expects proof that the marriage was genuine from the start, even if it later failed. Substantial evidence is needed to prove your marriage was genuine despite a divorce when applying for a waiver. If USCIS has concerns, you may need to submit additional evidence, such as divorce decrees or proof of marriage legitimacy, to address issues like marriage validity or fraud. It is crucial to provide evidence and submit evidence that demonstrates your marriage in good faith, especially if you are seeking a waiver or removal of conditions.

Essential Evidence List

• Joint tax returns, leases, mortgages, bank statements
• Photos from multiple years showing shared life events
• Insurance policies listing each other as beneficiaries
• Birth certificates of children (if any)
• Affidavits from family/friends confirming bona fide marriage
• Evidence of shared responsibilities, such as joint bills, parenting, or household duties

Key Insight:

Even if your spouse left abruptly, you can still present evidence covering the period you lived together — USCIS examines the entire relationship timeline, not just the end.

7. What to Expect at the USCIS Interview

Most I-751 applicants are interview-waived, but those with marital changes usually face an interview. You may need to attend an interview to demonstrate eligibility to remove conditions on your permanent resident status.

During this interview, officers may ask:

• When and why separation began
• Whether divorce proceedings have started
• If both still share finances or residences

If your case is denied at the interview stage, it may be referred to an immigration judge for further review.

Important Note:

If your divorce isn’t final yet, USCIS may issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) giving time to submit the decree (sometimes not much time is provided, such as 30 to 87 days).

Expert Tip:

Bring your updated documents, proof of good faith, and, ideally, a letter from your attorney explaining the situation.

8. How Long Does USCIS Take to Decide After Separation (2025 Trends)

In 2025, average processing times remain lengthy due to backlogs:

Fast Fact:

Some waiver cases extend beyond two years, but your conditional status continues automatically while the petition is pending. The receipt notice from USCIS serves as proof of your extended status and work authorization.

Track current times on the USCIS Processing Time Tool.

Introduction to Conditional Resident Status

Conditional resident status is a unique, temporary form of U.S. immigration status granted to individuals—most often spouses of U.S. citizens or lawful permanent residents—who have been married for less than two years at the time they receive their green card. This status is not permanent; instead, it comes with specific requirements that must be met to secure full lawful permanent resident status.

If you are a conditional resident, your green card is valid for only two years. To maintain your permanent resident status and avoid removal proceedings, you must properly file Form I-751, Petition to Remove Conditions on Residence, with U.S. Citizenship and Immigration Services (USCIS). This petition is your opportunity to prove that your marriage was genuine and not entered into for immigration purposes.

It is critical to file the I-751 petition within the 90-day window before your conditional green card expires. Failing to file on time or not submitting the required evidence can result in the loss of your conditional resident status and may trigger removal proceedings. By following the correct process and submitting all necessary documentation, you can remove the conditions on your residence and secure your place as a lawful permanent resident.

USCIS reviews each 751 petition carefully to ensure compliance with immigration laws. If you have questions about your status or the process to remove conditions on residence, consulting with an experienced immigration attorney can help you avoid costly mistakes and protect your path to permanent residence.

Avoiding Immigration Fraud

Immigration fraud is a serious issue that can jeopardize your permanent resident status and future eligibility for immigration benefits. When filing Form I-751, it is essential to be completely honest and transparent with U.S. Citizenship and Immigration Services (USCIS). Submitting false information or fraudulent documents—such as fake joint financial records, altered birth certificates, or fabricated evidence of shared responsibilities—can lead to severe consequences, including denial of your petition, removal from the United States, and a permanent bar from reapplying.

To demonstrate a bona fide marriage, always provide genuine evidence, such as authentic joint financial records, real birth certificates, and documentation of shared responsibilities. If your marital situation changes after filing a joint petition—such as a divorce or legal separation—it is crucial to notify USCIS immediately. In the event of a finalized divorce, you must submit a waiver request along with your divorce decree to show that you are still eligible to remove the conditions on your residence.

Working with an experienced immigration attorney can help you navigate the complexities of filing Form I-751, especially if your circumstances change. An attorney can guide you in gathering the right evidence, preparing your waiver request, and ensuring that all information submitted to USCIS is accurate and complete. By taking these steps, you can protect your permanent resident status, avoid allegations of immigration fraud, and increase your chances of successfully removing the conditions on your residence.

9. Common Scenarios & Outcomes

Key Insight:

The earlier you notify USCIS and document the change, the less likely your case will be referred to removal proceedings.

10. Legal Help: Comparing Experienced Immigration Law Firms (2025)

When facing a marital breakdown during your I-751 process, the right legal team can save your green card. Below is a comparison of firms frequently handling such cases:

Why Choose Herman Legal Group

• Over 30 years advocating for immigrants nationwide
• Offices in Cleveland and Columbus, Ohio
• Multilingual attorneys fluent in 10 + languages
• Compassionate, strategic representation in complex I-751 waiver cases

Book a confidential consultation now →

11. Preventive Steps: Protecting Yourself Legally and Emotionally

1. Keep records updated. Save copies of every joint document.
2. Notify USCIS promptly if your address or marital status changes.
3. Seek counseling or therapy if the process becomes emotionally overwhelming.
4. Retain an immigration attorney early. Proactive advice can prevent denial.

For additional legal-aid listings, see the AILA Lawyer Search or local Ohio legal-aid directories.

12. Frequently Asked Questions (FAQ)

Q1. Can I attend the USCIS interview without my spouse?
Yes. USCIS will interview you alone if you’ve converted to a waiver filing.

Q2. What if my spouse refuses to sign after we already filed jointly?
You can still file a waiver-based I-751 immediately; attach proof of your prior joint filing.

Q3. Can USCIS deny my I-751 while divorce is pending?
They usually issue an RFE or hold the case until the final decree arrives.

Q4. What happens after a Notice of Intent to Deny (NOID)?
You have 30 days to respond with new evidence or the divorce judgment.

Q5. Will I lose my job while the case is pending?
No. Your conditional status and work authorization automatically extend when USCIS issues the I-797 receipt. Upon receipt of Form I-751, USCIS extends conditional resident status for 48 months while the case is pending.

13. Key Takeaways

• You can continue your green-card process alone if your spouse withdraws.
• File a waiver promptly to avoid status termination.
• Evidence of good-faith marriage remains the strongest defense.
• Processing times are long, but lawful status continues during review.
• Herman Legal Group offers experienced, compassionate representation for I-751 waiver cases in Cleveland, Columbus, and nationwide. Working with an immigration attorney can provide valuable guidance during the I-751 process after divorce. If your I-751 petition is denied, USCIS will mail you a decision explaining why it was denied.

Schedule a consultation to discuss your I-751 strategy.

© 2025 Richard T. Herman | Herman Legal Group – The Law Firm for Immigrants
www.lawfirm4immigrants.com