Explaining the Difference: Joint Filing vs. Waiver

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What Is Joint Filing?

Suppose you and your spouse have been married for less than two years at the time of your adjustment of status through marriage application approval. In that case, you’ll be granted conditional permanent residence. This conditional green card is valid for two years.

To remove these conditions and secure your permanent residency status, you must submit a joint petition (Form I-751) within ninety days before your two-year conditional period expires. This is done through joint filing, meaning both spouses will sign the petition, but in specific situations, you can request a waiver of this requirement.

If you are wondering whether joint filing or a waiver applies in your situation, it is essential to get help from a competent immigration attorney in Texas. Read on to learn more about the marriage green card filing status and the circumstances under which they apply.

Who Is Eligible for Joint Filing?

Your conditional permanent resident status does not guarantee that you will receive lawful permanent residence (a ten-year green card). There are still certain conditions you must meet to qualify for joint filing. These include:

  • Remaining married to your US citizen or lawful permanent resident spouse for two years

  • Your parent remains married to their US citizen or lawful permanent resident spouse for two years

As the child of a conditional permanent resident, you can file a separate joint petition with your US citizen or LPR stepparent if you were not included in their Form I-751. If joint filing is done before the ninety-day window, your application might be rejected.

When Can You Request for a Waiver?

The US Citizenship and Immigration Services (USCIS) allows for the request of immigration waivers in specific situations, detailed as follows:

Waiving the Joint Filing Requirement Due to Divorce After a Good Faith Marriage

If your marriage was genuinely entered into, but you subsequently divorce within two years, you can apply for a waiver. The fact that you divorced your spouse during the two years will likely raise concerns about the authenticity of your marriage. However, you must prove that valid reasons exist to justify the divorce and for waiving the joint filing requirement. This includes providing evidence of a genuine marriage, such as:

  • Proof of children you had together (e.g., birth certificates)

  • Evidence of cohabitation (e.g., utility bills)

  • Proof of joint financial resources (e.g., joint tax returns, joint tax liability)

  • Evidence of shared experiences (e.g., vacations or trips taken together)

  • Submission of the final divorce decree. If divorce proceedings are ongoing, proof of initiation suffices.

Waiving the Joint Filing Requirement Due to Death of the US Citizen or LPR Spouse or Stepparent

In the unfortunate event of your spouse’s death, you can request a waiver for the joint filing requirement. You must present a copy of the death certificate and prove the initial marriage was genuine. If you and your spouse previously filed a joint application, you might need to inform the USCIS to convert it into a waiver request if it hasn’t been approved yet.

Waiving the Joint Filing Requirement Due to Extreme Hardship

The requirement of joint filing may be waived if you can prove that deportation will cause you extreme hardship. You do not necessarily need to prove a good faith marriage to apply for this waiver, but it is not easy to qualify for. You must provide evidence showing that political or economic situations in your country have changed, which will make you suffer hardship—such as belonging to an ethnic minority group in your country that suffers persecution.

Waiving the Joint Filing Requirement Due to Extreme Cruelty

This waiver applies if you’ve experienced domestic violence or abuse during your marriage. You must provide evidence of extreme cruelty or acts of violence perpetrated by your abusive spouse or stepparent, which can encompass physical, mental, psychological, or sexual abuse (e.g., medical reports, photographs of injuries, witness statements).

You don’t need to divorce your spouse to request this waiver, but you must show that the marriage was genuine when you entered it.

What Happens After Filing Jointly?

After you and your spouse have filed a joint Form I-751 or petition to remove conditions, the USCIS may request that you attend an interview. The interview is done to confirm your eligibility to remove the conditions on your green card. During the interview, the USCIS will ask questions about your marriage relationship.

The USCIS may waive the requirement for an interview where:

  • Their records contain sufficient evidence that the marriage is genuine

  • Their records contain sufficient evidence that you qualify for a joint filing waiver

  • There is no indication of fraud or misrepresentation in the supporting documentation provided

  • There are no complex issues or facts that require an interview

  • There are no criminal grounds that render you inadmissible

If you are inadmissible due to overstaying your visa, certain provisional waivers may apply to your case (e.g., unlawful presence waiver)

What Happens if Your Waiver Request Is Denied?

If the USCIS denies your waiver request, they will notify you through email explaining the reasons for the denial. You may also receive a Notice to Appear (NTA) before an immigration judge for removal proceedings. In this situation, you can request the judge’s review of the USCIS’s decision during your hearing. If the judge issues a removal order, you have thirty days to appeal the decision, a process that a deportation defence lawyer can facilitate by filing an appeal with the Board of Immigration Appeals.

Why You Should Contact an Immigration Lawyer in Texas

Even if you have a bona fide marriage, filing a joint petition or waiver request can be complicated. You want to get it right the first time and avoid raising doubts in the mind of the USCIS officer. To ensure that your application is free from errors and uncertainties, you must engage an experienced immigration attorney in Atlanta to handle your case.

At Andrew T. Thomas, Attorneys at Law, we possess a profound understanding of immigration laws. We can comprehensively analyze your case and provide professional guidance on gathering the necessary supporting documents, ensuring your application is filed correctly. Regardless of whether you are considering Form I-751, our attorneys are poised to assist you through the process.

If you are preparing to submit Form I-751, contact our attorneys today. We are ready to guide you through the process.