Family Changes During Conditional Residence (Divorce, Children Turning 21)

Navigating changes within your family structure while holding conditional permanent residence status in the United States requires careful attention to immigration regulations. This section addresses common scenarios, particularly divorce and children reaching the age of majority, and their impact on your ongoing status adjustment process.

Impact of Divorce on Conditional Residence (I-751)

Conditional permanent residence is typically granted based on a qualifying marriage. If the marriage ends before the two-year conditional period is complete and you are filing Form I-751, Petition to Remove Conditions on Residence, you must demonstrate that the marriage was entered into in good faith.

Filing Without a Spouse (Waiver)

If you divorce before filing or during the I-751 processing period, you must file Form I-751 with a waiver of the joint filing requirement. Common waiver categories include:

• Battered Spouse or Child Waiver: If you entered conditional residence through marriage to a U.S. citizen or LPR, and you or your child were abused by the spouse.
• Good Faith Marriage Waiver: If the marriage ended through divorce, but you can prove the marriage was entered into in good faith, even though it ended.
• Extreme Hardship Waiver: If departure from the U.S. would result in extreme hardship to you (though this is rarely granted for divorce cases alone).

For the good faith waiver following divorce, you must provide substantial evidence proving the marriage was legitimate at its inception, such as joint leases, financial documents, and correspondence predating the divorce filing.

Children Turning 21 During Conditional Status

A crucial aspect of family-based immigration is the child's age calculation under the Child Status Protection Act (CSPA). If your child was the derivative beneficiary on your initial petition, their eligibility for adjustment or removal of conditions can be affected by aging out.

CSPA Age Calculation

The CSPA attempts to "freeze" a child's age for immigration purposes if certain criteria are met. The calculation involves:

1. Determine the child's age on the date the principal applicant's (you) immigrant visa or adjustment of status was approved.
2. Subtract the time the underlying immigrant visa petition (Form I-130) was pending.
3. If the resulting age is under 21, the child is generally considered a "child" for immigration purposes.

Note: If the child ages out before the principal applicant's I-751 is approved, they may need to file their own derivative application or seek protection under the CSPA rules if they meet the criteria.

Action Required for Aging-Out Derivatives

If your child turns 21 while you are in conditional residence status, ensure they are included correctly on your I-751 filing if they are still eligible, or consult an attorney immediately if their status is in question.

Failing to properly account for a child turning 21 before the principal applicant's status is secured can result in the derivative losing their path to permanent residency through the parent's case.

Documentation Considerations

Regardless of whether you are filing jointly or using a waiver, documentation must be meticulously organized. When divorce occurs, include the final divorce decree with your I-751 petition.

If you are filing based on abuse (VAWA-based waiver), you must submit evidence showing that the qualifying relationship existed and that abuse occurred. Evidence may include police reports, medical records, or testimony from counselors. Use the code Form I-751 for reference.

Summary of Key Steps

• If divorced, determine the appropriate waiver category (Good Faith, Abuse, or Hardship).
• Gather the final divorce decree and evidence proving the marriage was bona fide.
• If children are involved, recalculate their CSPA age to confirm their derivative status eligibility.

Family changes are common, but they introduce complexity into the conditional residency process. Proactive documentation and timely filing are essential to avoid the termination of your conditional status.