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I751 Waiver of Joint Filing Requirement
Foreign spouses of US citizens or permanent residents who got their green cards by marriage typically become conditional permanent residents. This status is only valid for two years, after which they either lose their legal immigrant status or become unconditional legal permanent residents. This depends on whether they file form I-751, a petition to remove conditions on residence.
Typically, form I-751 is supposed to be filed by both partners to prove the existence of a good-faith marriage. If the United States Citizenship and Immigration Services (USCIS) is satisfied that the marriage is not fraudulent or entered into for immigration benefits, they will approve the form. However, in some cases, the foreign partner needs to file this form independently. In such cases, the foreign partner has to file an I-751 waiver of the joint filing requirement.
The waiver petition may be approved or denied by the USCIS. This depends on how well the petitioning spouse can prove the validity of their reason for filing individually and that the marriage was authentic before it ended.
In general, there are three types of I751 waivers:
- Extreme Hardship Waiver: This waiver is for cases where the foreign spouse may suffer extreme hardship if they were to be removed from the United States. This is typically used when the petitioning spouse can prove their removal would cause significant emotional or financial harm to themselves and/or their US citizen or permanent resident children.
- Battered Spouse Waiver: This waiver is for cases where the foreign spouse has been subjected to domestic violence while in the marriage. They must provide evidence of the abuse, such as police reports, medical records, or statements from witnesses.
- Divorce Waiver: This waiver is for cases where the foreign spouse’s marriage ended in divorce before their conditional permanent residence expired. They must provide evidence of the divorce, such as a final judgment or decree.
What Are the Potential Challenges or Issues That May Arise When Applying for an I751 Waiver?
When applying for an I751 Waiver, several potential challenges or issues may arise. One major challenge is demonstrating a Bona Fide Marriage. USCIS requires compelling evidence that the marriage was genuine and not for evading immigration laws.
Documentation such as joint bank account statements, shared property leases, birth certificates of children born to the couple, and photos can substantiate this. However, gathering substantial and convincing evidence can be difficult, mainly if the marriage was short-lived.
The filing fee is another challenge that many people face. As for processing times, it can take several months to over a year for USCIS to process an I751 Waiver, which varies based on the specifics of your case and the processing center’s workload.
After filing, you should receive a receipt notice extending your conditional permanent residence status for a year past the expiration date on your green card. This allows you to remain a lawful permanent resident while your application is pending.
Situations That May Warrant a Waiver of the Joint Filing Requirement
The USCIS recognizes four instances where the conditional permanent resident spouse may not file jointly with the permanent resident or U.S. citizen spouse. These are:
- Where the citizen or permanent resident spouse died during the marriage
- Where the marriage ended in a divorce or annulment but was entered into in good faith
- Where the petitioning foreign spouse or their child is a victim of battery or extreme cruelty at the hands of the citizen or permanent resident spouse
- Where the removal of the foreign spouse would result in extreme hardship
The USCIS has different requirements for people who fall into this category beyond the standard requirements for filing Form I-751.
Waiver Based on Spouse's Death
If your spouse died before your two-year permanent residence period was up, you would not be able to submit a joint petition. In this case, you can still convert your conditional resident status to legal permanent resident if you file form I-751 with a request for a waiver of the joint filing requirement on the grounds that your spouse has died. It is straightforward to do this.
You must provide various documents, including copies of the front and back of your conditional permanent resident card and evidence that your marriage was genuine. You must also provide a copy of your spouse’s death certificate to prove they are dead. If the USCIS is satisfied with your petition, you get a 10-year renewable green card.
Waiver Due to Divorce
Typically, you should file for a waiver on the grounds of divorce after the decree has been issued. In this instance, you would submit form I-751 and prove that the marriage was genuine while it lasted but ultimately ended in a divorce. You would also need to attach your final divorce decree or annulment decree.
However, sometimes, your divorce is not finalized until after your conditional resident card expires. In such circumstances, you can still file form I-751 even if your divorce or annulment proceeding is yet to be concluded. However, the USCIS will issue a Request for Evidence for a copy of the final divorce decree or annulment in such cases.
If your divorce situation is a little more complicated, it is best to seek the advice of a professional immigration attorney before filing form I-751 for permanent resident status without conditions.
Waiver Based on Battery and Extreme Cruelty
Abusive partners are known to use immigration benefits to control their foreign partners. However, specific immigration provisions can help such victims of abuse become legal permanent residents independently of their spouses.
Similar to the VAWA self-petition, a foreign person who is battered or subjected to extreme cruelty or whose child suffers the same at the hands of their US citizen or permanent resident spouse can file form I-751 independently. They need to submit their petition with proof that the abuse happened and that they entered the marriage in good faith without the intention of gaining immigration benefits.
A professional immigration lawyer can file the form to help the petitioner keep the application a secret from the abusive partner. For instance, they can use their firm’s address as the mailing address and help prepare supporting documentation. Supporting documents include police reports, statements from witnesses of the abuse, reports from school officials, photographs of injuries, and so on.
In addition, the petitioner has to submit copies of their conditional residence card.
Difference Between Waiver Based on Battery and Extreme Cruelty and a VAWA Self-Petition
The waiver for the joint filing requirement of form I-751 is only for spouses of US citizens or permanent residents who have already gained conditional resident status. For abused spouses who were never conditional residents for the required two-year period, the VAWA Act allows such persons to fill out Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant to get their green cards.
Waiver Due to Extreme Hardship
To seek a waiver on the grounds of extreme hardship, the petitioner must prove that deportation would cause hardship not typically faced by other non-citizens who are removed after an extended stay. The USCIS does not precisely define hardship. However, they may consider factors like the foreign petitioner’s family ties to the US compared to their home country, health status, etc.
According to the USCIS, all evidence presented should only relate to factors that arose during the petitioner’s two-year conditional residence period. Again, filing under this category is very tricky; a skilled attorney may be able to get your waiver application approved.
How Can an Attorney Help?
An experienced immigration attorney will know what supporting evidence you can attach to your waiver application to improve its chances of approval. Furthermore, if your waiver request has been denied, a skilled immigration attorney can represent you in removal proceedings and help you get it approved at that stage.
They can also help if your conditional permanent residence has expired and you are in divorce proceedings with your spouse. In this case, an attorney may be able to file a motion to terminate removal proceedings before the immigration judge based on your pending divorce.
In addition, a professional lawyer will understand how to navigate through the confusing language and requirements of form I-751. They can ensure that your application is completed accurately and filed on time, saving you from additional delays or complications.
For excellent representation by an experienced immigration attorney in Texas with a proven record of winning results, reach out today to Andrew T. Thomas, Attorneys at Law!
