Removal of Conditions Joint Filing Waiver
If you have a conditional green card based on your marriage to a U.S. citizen or legal permanent resident, you must file I-751 Petition to Remove Conditions on Residence. If the condition on your residence is removed then you are eligible to receive a 10-year permanent resident card. Those conditional residents, who are still married to the same US citizen, should file I-751 jointly with their spouse. If the marriage has ended in divorce, death, annulment, or you were subject to extreme cruelty or have been battered by the petitioning spouse then you are able to file I-751 without your spouse and request the joint filing requirement be waived.
Who are eligible to request waiver of the joint filling?
If any of the following applies to you then you can apply for I-751 without your spouse:
- You entered the marriage in good faith, but your spouse subsequently died;
- You entered the marriage in good faith, but the marriage was later terminated due to divorce or annulment;
- You entered the marriage in good faith, but you have been battered or subject to extreme cruelty by your petitioning spouse; or
- Your conditional resident parent entered the marriage in good faith, but you have been battered or subject to extreme cruelty by your parent’s U.S. citizen or lawful permanent resident spouse or by your conditional resident parent; or
- The termination of your status and removal from the United States would result in extreme hardship.
Battered or subject to extreme cruelty by petitioning spouse
Some conditional residents forcefully stay with a spouse who is physically or emotionally abusive out of the fear that they might lose their immigration status. It does not have to be that way. The victims of domestic violence need to write a detailed statement and gather and build supporting evidence such as official police and hospital records to show the violent and abusive behavior of the petitioning spouse. They also should prove with supporting evidence that they have entered into the marriage in good faith. The date to file I-751 waiver is different for those who are filling I-751 petition jointly. The I-751 that is being filed individually and without spouse based on the reasons stated above can be submitted any time after the date that the conditional residence status was granted and before the removal from the United States. This means that the requirement to file during the 90-day period immediately before the conditional residence expiration date does not apply to those who are requesting that the joint filing requirement be waived.
Divorce or annulment
If you are filing a waiver request of joint filling requirement for I-751 based on divorce or annulment, keep in mind that you would still need to prove by a written declaration and supporting evidence that you entered the marriage in good faith.
If your divorce is not final, and you are in the middle of divorce, or you are separated without any divorce decree, you can proceed to file the waiver request, but you should note that you will receive a Request For Evidence (RFE) with a response period of 87 days. RFE would ask you to submit a copy of your final decree or annulment. If the divorce takes place during the response period, then you can submit the divorce decree to establish your eligibility for the waiver. If not, your I-751 would be denied and you will receive a Notice of Termination of Conditional Residence Status. USCIS will also send you a Notice to Appear (NTA) in immigration court for the removal proceedings.
However, during the removal proceeding, you may still be eligible to request for a waiver before an immigration judge in the event the marriage has been terminated.
One of the grounds to request a waiver is “extreme hardship”. The extreme hardship is a tough threshold to meet and you should back up your claim with convincing evidence. However, if you are requesting the waiver based on this ground you do not have to prove the good faith marriage as you do with other grounds of waivers. Your supporting evidence to prove that removal from the United States will cause you an extreme hardship, should be relevant to the two-year period that you were admitted as a conditional resident based on BIA’s decision in Matter of Munroe, 26 I&N Dec. 428 (BIA 2014).
If you are filing I-751 jointly with the petitioning spouse or you are filing a waiver request, you should discuss the specific details of your case with an immigration attorney in order to prepare your petition and include the appropriate documents to avoid having your petition denied. If you need more information on I-751 Petition to Remove Conditions on Residence and joint filling waivers, please contact our office.