The statute requires that the alien establish that he or she “was not at fault in failing to meet the requirements” for filing a joint petition for removal of conditions. This should not be read as requiring that the alien’s divorce decree finds his or her spouse to have been at fault, nor does it require that the divorce was obtained on a no-fault basis. You still might determine that the alien was wholly or partly responsible for not meeting the joint petitioning requirements. Likewise, a divorce decree stating that the alien was “at fault” (with regards to the breakup of the marriage) does not preclude you from independently determining that he or she was not at fault, at least with regard to the requirements of the immigration law.
As the adjudicator, you must make your own determination on this issue. While the language of the divorce decree may provide useful information on the reasons why the marriage was terminated (and therefore why a joint petition was not possible), and may even significantly increase the alien’s burden of proof, the decision on whether to grant the waiver belongs to the Service, not to the divorce court judge. Remember that in the worst marriage fraud cases, the parties to the fraud would agree in advance that the alien would file for divorce and that the petitioning spouse would accept fault for the breakdown of the marriage.
