Is it better to file for a green card while married or after the divorce? 8 Answers as of November 07, 2011

She has two options. If she is still married to her husband, she must file the petition to remove the conditions on her residency as a joint petition with her U.S. citizen spouse. Both parties must sign the petition and it must be filed jointly. If she is separated or divorced from her U.S. citizen spouse, she can file the petition on her own, but she must prove one of three things: (1) the marriage has been legally terminated, but was entered into in good faith; (2) she was the victim of abuse or extreme mental cruelty during the marriage at the hands of her U.S. citizen or permanent resident spouse; or (3) it would be an extreme hardship on her to return to her home country. If she wants to file under the first option, she must be legally divorced. She can file the petition before the divorce is final, but she will get a request for evidence asking for the final divorce decree and she will be given 87 days to produce the final divorce decree. If she cannot produce it in that time, the petition will be denied and she will be placed in removal proceedings. At that time, she can renew the petition before the immigration judge and, ideally, the divorce will become final during the removal proceedings. She must still demonstrate that the marriage was entered into in good faith and must have substantial objective documentation of the bona fides of the marriage including such things as joint taxes, joint bank accounts, mutual property, photos and momentos of trips taken together, bills in both names, lease agreements in both names, etc.

I am sorry to hear what your friend is going through. Cross-border marriage is not as rosy as others say. She is not alone. Her concern is reasonable because without her spouse's support, she can't get I-751 approved. To prove her case under this circumstance requires great expertise. She definitely need to rely on an experienced lawyer's help.

It is better to file together. Anything short of that, please have her see an attorney for more options. It all depends on the information that she provides.

Probably better to be honest. Better divorce, then file alone using the waiver. (Got married in good faith but marriage fell apart through no fault of alien). She should present all available documents to show they were living together such as joint taxes, medical, insurance, bank records, rental agreement, etc.. It is always easier to gather those documents before moving out of the house. She should also include a statement how she met him, their life together, why it did not work. However, she would increase her chances of success with an experienced attorney.

The decision to divorce should be unrelated to the underlying immigration case. If she divorces now, she can file the I-751 on her own based on "good faith" marriage ended in divorce. She needs to have evidence of cohabitation and co-mingling of funds. you.

Your girl friend must be divorced if she wants to file the I-751 by herself as waiver. She should consult with an immigration attorney to assess her options.

Your friend can divorce if she has a conditional green card. She will need to file the I-751 on her own. It will be her burden to demonstrate the marriage was bona fide. This is done by presenting evidence regarding the marriage such as financial records, proof of co-habitation, witness statements, photographs, etc. The fact that he husband states the marriage was fraudulent in and of itself will not be sufficient to deny the I-751, but it will make things difficult. The most important piece of advice I can give is to be truthful when dealing with USCIS. Your friend should consider speaking about the matter in more depth with an experienced immigration attorney before making a decision on how to proceed.

Your friend can file with her husband or without. To file without, she must first file for a divorce. As long as she has proof of the marriage, she should be fine either way.