Removing conditional status from GC- However we're separated but not yet divorced

[OzD]

Hi!

I'm a wee bit confused as to how to fill form I-751 to get my conditional status removed. My wife (US Citizen) and I (conditional green card holder) are separated, but not yet divorced, however we do plan on getting divorced. Our lawyer at the time (about a year ago) told us to wait until we filed this, and then go through with the divorce. My conditional status expires in about 3 months. (I would consult the lawyer, but I unfortunately cannot afford it right now)

My question is regarding part 3 on the form, where I have to state whether I'm filing jointly or separately. I can't put jointly, since we're not really together, but there is also no option for 'separate but not yet divorced'.

We are on good talking terms and still share finances, FWIW. However, we don't share the same physical address.

So should I choose the following option:
My marriage was entered in good faith, but the marriage was terminated through divorce or annulment

I can provide our different physical addresses, and also include a letter explaining the situation, along with why we are getting divorced (Its a valid reason, with me having proof of everything, along with receipts of 9 or so months of couples counseling). I doubt I have time to get divorced and then file this, specially since we're both in different states currently.

Thank you

[newacct]

Even if you are separated or in the process of divorce, you are still married, and you are still technically eligible for a jointly-filed I-751 as long as the divorce isn't final before the I-751 is approved, and your spouse is willing to submit the application and attend the interview if there is one. See this memo. You should be upfront about the separation and pending divorce, perhaps in a cover letter, to avoid any appearance of deception. However, given that I-751 often take more 1.5 years these days, there is a good chance that the divorce will be final before the I-751 is approved, in which you will have to switch to a divorce-based filing anyway.

Alternately, you can file on the basis of divorce, but technically you are only eligible for this after your divorce is final. So if you file this before your divorce is final, as the above memo says, they will give you an RFE to provide the final divorce decree. If your divorce is still not final at that time, they will deny your I-751, and put you in removal proceedings. (It might sound scary, but it's normal process in such a case.) When your divorce is final, you can file I-751 again with the immigration judge in removal proceedings. (A self-filed I-751 does not have to be filed in the 90-day window, and can be filed late, including while in removal proceedings.) Perhaps another solution might be to not file I-751 now, and wait until your divorce is final to file I-751 late with USCIS to hopefully avoid removal proceedings, with the downside that you will not have proof of legal status in the meantime.

[OzD]

Thank you so much for your response, newacct.

It has been a long day for me, and I want to go through that memo in more detail, like check out the various sections which have been mentioned. Also, I just learned the difference between legally separated and divorce, lol. I'm going to look into that memo in the morning, but from just skimming it, it does seem like I'll have to file jointly, as you said. I will include a cover letter explaining the situation.

[newacct]

You don't "have to" file it jointly -- for example, you might not be able to, if your spouse is not cooperative. But since your spouse is cooperative, both options are possible. It is not wrong to file based on divorce, but the process might be a little complicated due to the timing of the divorce.

[OzD]

Ah, got it. Yeah, fortunately for me she is cooperative. I'm going to file jointly, provide the difference addresses, and take it from there. Thanks again for your input!

You have a wonderful rest of your weekend!

Oz