Removing the Conditions on Your Permanent Resident Status: The I-751 Waiver of the Joint Filing Requirement

Family-Based Immigration

Marriage to a US citizen is the easiest and quickest way to obtain a green card for permanent resident status in the United States. If your marriage to your US citizen spouse was less than two years old on the date that your green card was issued, however, your green card will confer only conditional permanent resident status. To obtain bona fide permanent resident status, you will be expected to file USCIS Form I-751 and (perhaps) attend another immigration interview two years later.

The purpose of this extra filing and interview is to prove that your marriage was entered into in good faith (in light of its brevity) so that you can have your conditional permanent resident status converted into a bona fide permanent resident status. If your conditional resident is removed, you will only have to renew your permanent resident status every 10 years, and no additional interviews are likely to be required even if your marriage ends in divorce.

The Cooperation of Your Spouse and the Availability of an I-751 Waiver

In most cases, your US citizen spouse must cooperate by filing your I-751 form jointly with you and, if an interview is scheduled, attending the interview with you. In some cases, however, two years later the marriage is no longer viable due to separation or divorce, or for some other reason the US citizen spouse (or ex-spouse) is unwilling or unable to cooperate in converting conditional resident status to bona fide permanent resident status.

If this happens, it is never good news, because it places your “good faith marriage” intentions in doubt. Nevertheless, there are certain circumstances under which you can obtain an I-751 waiver and file Form I-751 individually (without the cooperation of your spouse or ex-spouse).There are several bases upon which a conditional permanent resident can apply for an I-751 waiver.

Grounds for a Waiver

The way for a conditional permanent resident to seek a waiver of the joint filing requirement (so that you can file Form I-751 on your own) is to attach a statement requesting a waiver into your I-752 application package, state the ground or grounds for your request, and include evidence for your eligibility together with your I-751 petition.

You can assert as many grounds as might apply to your current conditional resident status. Following are some of the most popular grounds for a conditional permanent resident to seek an I-751 joint-filing waiver.

The death of your spouse

Obviously, your spouse cannot sponsor you for the modification of your conditional resident status if he or she dies between the date your green card is issued and the date by which you must submit a Form I-751 petition to have your conditional resident status converted to bona fide permanent resident status.

The end of a marriage by death is looked at completely differently by the USCIS then the end of a marriage by divorce. In this case, you can submit a certified copy of your spouse’s death certificate to prove the death of your spouse.

A waiver based on divorce or annulment

If you divorce during the two-year period between the time your conditional green card is issued and the time you are required to file a Form I-751 petition for the removal of the conditions on Form I-751; or if your marriage is annulled during that time, you will need to seek a waiver of the requirement to file Form I-751 jointly with your spouse.

Remember that if you are no longer married, your ex-spouse cannot jointly file Form I-751 with you even if he is willing to do so, meaning that a waiver is an absolute necessity for the conversion of your conditional residency to bona fide permanent residency.

Reasons for divorce

“I divorced my spouse because I no longer needed his cooperation to obtain a green card” is, quite naturally, not an acceptable reason for divorce in the eyes of US immigration officials. Some of the reasons that are (or could be considered legitimate include the following:

  • No-fault divorce: Most US divorces are “no-fault”, meaning that all it takes to get a divorce is for one party to cite “irreconcilable differences” in order to secure a divorce, even over the other spouse’s objections. An example of an irreconcilable difference would be, for example, if one spouse wants to have children but the other spouse doesn’t.
  • “Fault” divorce: A minority of divorces are based on fault, and only a few states allow fault-based divorces. The most common grounds for fault-based divorce include physical or mental cruelty, adultery, and abandonment.

The extreme hardship waiver

You can obtain an I-751 joint-filing waiver by proving that you would suffer extreme hardship if you returned to your home country, regardless of whether this hardship had anything to do with your spouse’s behavior.

A “battery or extreme cruelty” waiver

You can obtain a waiver of the I-751 joint filing requirement by proving that your spouse subjected you to “battery or extreme cruelty” during your marriage. This waiver is different from the cruelty waiver under the Violence Against Women Act (VAWA) because the VAWA waiver does not require you to have already obtained a conditional green card.

The ‘good faith marriage’ requirement

In all cases (no matter what the grounds under which you seek a waiver), you will have to prove that you originally entered into the marriage in good faith — in other words, you did not marry solely for the purpose of obtaining immigration benefits.

It is OK if you took immigration benefits into consideration when deciding whether to marry your spouse — immigration benefits just can’t be the sole reason for the marriage, that’s all. It is also OK if your marriage turned out to be a disastrous mistake, as long as your original intentions were honest and not based solely on the anticipation of immigration benefits.

The Herman Legal Group

The Herman Legal Group, a law firm founded over 25 years ago by nationally-known immigration attorney and author Richard Herman, is known for its individualized approach to its clients’ cases, its caring attitude toward their concerns, and its award-winning service. In 2016, the U.S. News & World Report awarded it the designation of “Best Law Firm” in immigration law.

In addition to our law firm’s expertise in immigration law, there is a good chance that we speak your native language as well — our staff speaks over a dozen languages including Spanish, Mandarin Chinese, Russian, Arabic, and other languages. We have helped thousands of our clients obtain employment, reunited with family, or start a completely new life in America. We’d like to do the same for you.

Frequently Asked Questions (FAQs)

How can I prove that my marriage was originally entered into in good faith and not simply for immigration benefits?

Proving your own state of mind, especially your state of mind two years ago, can be challenging. In some cases, all you have to offer is your own word. Nevertheless, the following are some of the ways you can bolster your case:

  • Documentation of marriage counseling, especially if you are the one who initiated the counseling and if you faithfully attended the counseling sessions.
  • A personal declaration in which you describe in detail how you met your spouse, why you married, and how you feel about your spouse (mixed emotions are considered normal).
  • Birth certificates for any children that you had together. After all, why would you have children with a spouse whom you married only for immigration benefits?
  • Legal documents that show joint bank accounts, joint title to real estate, and similar arrangements.
  • Documents showing that one of you is the beneficiary of the other’s life insurance policy or retirement plan;
  • A personal ID card such as a driver’s license showing that you use your spouse’s or ex-spouse’s last name or that your spouse or ex-spouse used your last name;

How can I prove that I was subjected to battery or extreme cruelty?

The battery is a fairly simple concept, and in the immigration context, it has nothing to do with the generation of electricity. The battery is physical violence that your spouse commits against you, and it is a distressingly common phenomenon. Battery includes not only actions that produce physical injury but also includes forced or coerced sex.

Extreme cruelty, on the other hand, refers to cruel behavior that does not fall within the definition of battery, including psychological abuse. Some examples include (but re not limited to:

  • Threatening to report you to immigration authorities as a means of controlling you;
  • Threatening to hurt you or your children, even if the threat is never carried out;
  • Withholding money or food from you as a means of control; or
  • Preventing you from contacting relatives or friends.

Your personal statement should provide as much detail as possible concerning this behavior. Medical and police reports would greatly strengthen your application, as would affidavits from social workers and photographs of any injuries.

How can I establish the extreme hardship exception?

One way to show you are eligible for an I-751 waiver is to show that you are afraid of returning to your home country. In order to establish your eligibility for an I-751 waiver so that your conditional residence can be converted to bona fide permanent residence under this provision, consider assembling the following evidence:

  • If you have been the victim of abuse, you can use your personal declaration to describe your need for psychological, legal, medical, and other support services that are available in the United States but not in your home country.
  • If your abuser is able to travel to your home country and is motivated to do so, you can point to a lack of effective restraining orders in your country
  • You can mention debilitating social stigmas and economic hardships suffered by divorced women if these apply in your home country.
  • If you have friends or associates, either in the United States or abroad, who know what would happen to you if you returned to your home country, you could also them to provide support letters, preferably in the form of notarized affidavits

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If you need help with your immigration status (not limited to an I-751 waiver), we are ready to lace up our gloves and fight for you. You can contact us 24/7 from anywhere in the world by calling (+1) 216-696-6170 or (+1)(614) 300-1131, by completing our online contact form, or by stopping in one of our offices located in Columbus, Ohio, Cleveland, Ohio or Detroit, Michigan.

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