U.S. Citizenship and Immigration Services' ("USCIS") Acting Associate Director Donald Neufeld issued a legal memorandum dated April 3, 2009, regarding I-751 petitions filed prior to termination of the applicant's marriage.  Specifically, this memo describes how USCIS will adjudicate I-751 cases filed when the Conditional Permanent Resident ("CPR") and their petitioning U.S. citizen spouse have separated or initiated divorce proceedings, but their marriage has not yet been legally terminated.  According to USCIS, if CPRs are legally separated and/or in pending divorce proceedings at the time of filing their I-751 petitions, they should indicate this in their filing.  They may prepare their I-751 petition in one of two ways:  1) Request a waiver of the joint filing requirement based on good faith marriage, and mandatorily respond to a Service RFE with proof of legal termination of the marriage within 87 days; or 2) File jointly with the U.S. citizen spouse, and optionally respond to a Service RFE with proof of legal termination of the marriage within 87 days.   A strategic choice should be made to file the I-751 petition as a waiver or jointly, depending on the specific facts of each case.

In the memo, USCIS clarifies that separation and/or initiation of divorce proceedings are not,by themselves, grounds for denial of an I-751 petition.  However, in order to approve any I-751 petition, the Service Officer must be satisfied that "the marriage was not entered into for the purpose of procuring permanent resident status."  

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