Often times a *Conditional Resident may feel trapped in a troubled marriage due to a false belief that they need their American spouse to help them to become permanent residents by way of Removal of Conditions I-751.
The Removal of Conditions filing (I-751) is an Immigration petition typically filed jointly by the American Spouse and the conditional resident spouse. The effect of an approved I-751 is to remove the conditions of the green card based on marriage, thus making the applicant a permanent resident thereafter. However, when there is abuse or a marriage just will not work, how can a conditional resident spouse overcome this requirement of joint filing? Under certain circumstances immigration system allows for a waiver of the joint filing requirement based on entering the marriage in good faith, abuse, or extreme hardship. This article will address what is required for the removal of conditions waiver process, as well as who qualifies for it and what you may need to prove your I-751 case.
*someone who gains his/her U.S. residency via marriage with a U.S. citizen or permanent resident before their 2-year wedding anniversary.
Background of I-751 Waiver
In the United States immigration process, if a foreign national obtains residency based on marriage to a U.S. Citizen or Permanent Resident before their 2-year wedding anniversary, he or she will receive conditional residency instead of permanent residency. This means that the foreign national’s green card will expire within 2 years of their residency being approved and they will need to apply for the removal of conditions 3 months before the expiration date of the green card.
The removal of conditions petition is called the I-751 petition. Typically, The I-751 petition is required to be filed jointly with the US citizen or Permanent Resident Spouse. If the foreign national cannot file jointly with their spouse, they must file an I-751 waiver independently to remove those conditions.
Who qualifies to remove conditions without spouse/I-751 Waiver?
Conditional residents may request a I-751 waiver without the spouse under the following situations:
- The death of the U.S. citizen spouse
If the I-751 petitioner’s spouse has died, the submission of a certified copy of the death certificate is suffice.
- The marriage was entered in good faith, but the couple went through annulment proceedings and/or is now divorced
For I-751 waiver, the conditional resident must submit evidence that the marriage was bona fide to begin with. Proof of a bona fide marriage will go under extreme scrutiny because the marriage was so short-lived. The applicant must also show that the marriage has been legally terminated by providing the divorce or annulment decree.
- The marriage was entered in good faith, but the non-citizen spouse was subject to abuse or extreme cruelty during the marriage
It is difficult to prove abuse and extreme cruelty because often times, the perpetrator is manipulating and threatening the victim. An abusive spouse may have control over all of the couple’s documents. In that case, the conditional resident spouse’s declaration, explaining the history of the relationship, will help. However, if there are documentations as well as proof of abuse such as pictures of injuries, statements from third parties, or journal entries, they should all be submitted in this waiver petition.
The applicant does not need to have documentation proving that the marriage has been terminated to qualify for the removal of conditions waiver/I-751 waiver.
- The noncitizen is a child whose parent entered their marriage in good faith, but the noncitizen child was subject to abuse or extreme cruelty
A conditional resident spouse can file a I-751 waiver if only his or her children were the victims of the physical or mental abuse. The child does not need to have U.S. citizenship or permanent resident status in order to file this waiver. In addition, the applicant does not need to have documentation proving that the marriage has been terminated to qualify for this type of waiver. In order to get an I-751 waiver approved, documentation of the abuse is extremely helpful.
- Termination of conditional residency would result in extreme hardship
A conditional resident may also file a waiver of the joint filing requirement if they can show that extreme hardship will result if they are deported. However, the hardship can apply to the conditional resident spouse, to a dependent child, or to a new spouse according to the USCIS. It is important to note that USCIS will only consider hardship that arose during the conditional residence period. In this case, though it would be helpful to submit evidence that the marriage was bona fide, it is not required.
Proving hardship can be difficult. Include any and all evidence that could possibly prove that the applicant would suffer more than what would be typical for a person who is forced to leave the United States and return to their home country.
Contact a Chicago Immigration Lawyer to handle your I-751 Waiver
Whether you are a divorcee or anticipating a divorce, we can help you to remove your conditions on your conditional residency. We have excellent track record on helping clients to become permanent residents. Contact our Chicago Immigration Attorneys today to schedule a consultation.