Chapter 4 - Joint Petitions and Individual Filing Requests

A. Joint Petitions

When the conditional permanent resident (CPR) spouse is still married to the same U.S. citizen or lawful permanent resident (petitioning spouse), the spouses file a Petition to Remove Conditions on Residence (Form I-751) jointly. A CPR child who cannot be included on the child’s CPR parent’s Form I-751 files a separate Form I-751 jointly with the petitioning stepparent.

A CPR and the petitioning spouse must jointly file Form I-751 within the 90-day period immediately preceding the second anniversary of the CPR receiving CPR status.^[1] The one exception to this rule applies to CPRs and petitioning spouses overseas on military or government orders. The statute suspends the 90-day period during any period of time in which the CPR or the petitioning spouse is overseas on military or government orders.^[2]

In a joint petition, the CPR and petitioning spouse or stepparent must establish that a qualifying, bona fide marriage exists and must submit evidence to show that the marriage was entered into in good faith and not to evade U.S. immigration laws.^[3]

USCIS may not deny a joint petition solely because the spouses are separated or have initiated divorce or annulment proceedings. If all other eligibility requirements are met and both the CPR and petitioning spouse or stepparent appear for an interview (if requested by USCIS), USCIS approves the joint petition. However, if the divorce or annulment is finalized while the joint petition is pending, the CPR is no longer eligible to remove conditions using the joint petition. However, the CPR may request that USCIS amend the joint petition to a waiver based on divorce.^[4]

If the joint petition does not contain sufficient evidence to establish eligibility, USCIS may issue a Request for Evidence (RFE) or schedule an interview or both.^[5]

B. Deceased Petitioning Spouse

The death of a petitioning spouse after the CPR obtains permanent resident status excuses the general requirement that a Form I-751 must be a joint petition. If the petitioning spouse dies after the CPR obtained CPR status, the CPR may file the Form I-751 individually without having to qualify for a waiver of the joint filing requirement.^[6] Such a filing is considered an individual filing request, not a waiver. A CPR child who cannot be included on the CPR parent’s Form I-751 may file a separate Form I-751 as an individual filing request based on the death of the petitioning stepparent.

If the petitioning spouse dies before filing a joint petition with the CPR, the CPR must file Form I-751 and check the appropriate box on the form to indicate that the petitioning spouse is deceased. In addition, the CPR must provide proof of the petitioning spouse’s death (for example, a death certificate).

If the petitioning spouse dies after filing a joint petition with the CPR and while the joint petition is still pending adjudication, the CPR must notify USCIS of the death and provide proof of death. USCIS then amends the joint petition and exempts the CPR from the requirement that the Form I-751 be jointly filed. There is no need for the CPR to file another Form I-751.

In both cases, the CPR must still establish that the qualifying marriage was bona fide and not entered into to evade U.S. immigration laws.^[7] The officer should adjudicate an individual filing request in the same way as a joint petition and determine whether the qualifying marriage was bona fide and all other eligibility requirements are met.

If the CPR does not provide sufficient evidence to establish eligibility, USCIS may issue a Request for Evidence (RFE) or schedule an interview, if appropriate, or both.^[8]

Footnotes 

[^ 1] See INA 216(c)(1). See 8 CFR 216.4(a)(1). A CPR may file the joint petition after the expiration of the 90-day period if the CPR establishes that there was good cause and extenuating circumstances for failing to file a timely joint petition. See Chapter 3, Petition to Remove Conditions on Residence, Section C, Filing Requirements, Subsection 2, Late Joint Filing [6 USCIS-PM I.3(C)(2)].

[^ 2] See INA 216(g)(1). For more information about procedures in cases involving military or government orders, see Chapter 3, Petition to Remove Conditions on Residence, Section D, Overseas on Military or Government Orders [6 USCIS-PM I.3(D)].

[^ 3] See 8 CFR 216.4(a)(5). See Chapter 3, Petition to Remove Conditions on Residence, Section A, Establishing a Bona Fide Marriage [6 USCIS-PM I.3(A)].

[^ 4] For information about changing the filing status from a joint petition to a waiver based on divorce, see Chapter 5, Waiver of Joint Filing Requirement, Section B, Good Faith Marriage (Divorce), Subsection 2, Separated But Not Yet Divorced [6 USCIS-PM I.5(B)(2)].

[^ 5] For additional information about RFEs, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)].

[^ 6] See INA 216(c)(1). See Matter of Rose (PDF), 25 I&N Dec. 181 (BIA 2010). For more information on INA 216(c)(4) waivers, see Chapter 5, Waiver of Joint Filing Requirement [6 USCIS-PM I.5].

[^ 7] See Chapter 3, Petition to Remove Conditions on Residence, Section A, Establishing a Bona Fide Marriage [6 USCIS-PM I.3(A)].

[^ 8] For additional information about RFEs, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)].