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I-751 Waiver After Divorce: Filing Alone (Without Your Ex)

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I-751 Waiver After Divorce: Filing Alone (Without Your Ex)

Foreign nationals who marry a US citizen or lawful permanent resident (LPR) become conditional US residents. They are given temporary US resident status and receive a two-year green card. Near the end of that two-year period, assuming such conditional residents want to become permanent US residents or US citizens, the first thing they must do is remove the “conditional” nature of their residency and become permanent residents. They do so by filing a Petition to Remove Conditions on Residence on the form I-751. This petition is typically filed within the 90-day period before the two-year conditional residency expires. And it is typically filed jointly by both spouses who together demonstrate that the marriage was bona fide (or legitimate) and not meant to obtain immigration benefits for the foreign national spouse.

But what if filing jointly – with both spouses participating equally in the petition – is not possible? This can happen as a result of divorce, annulment or separation. Or if the US citizen / LPR spouse is abusive and refuses to sign the I-751 petition. The refusal by the US citizen / LPR spouse to participate in the process of obtaining permanent US status for the foreign national can make the I-751 process very challenging and stressful. Fortunately, the I-751 provides a solution.

USCIS permits conditional residents to remove the conditions on residence even where divorce or some other event makes it impossible to file the I-751 jointly with the US citizen /LPR spouse through whom conditional residence was obtained. In short, it is possible to file the I-751 without your ex. In these cases, the conditional resident must seek a “waiver”, that is, filing the I-751 with a request that the joint filing requirement be waived. It is still possible for the conditional resident to be become a lawful permanent resident when a waiver is requested. However, it is more challenging given that USCIS will more closely scrutinize the I-751 petition. And given that an unsuccessful petition may result in removal proceedings for the conditional resident, the stakes are high.

Background – The Purpose of the I-751

The core function of the I-751 process is to demonstrate that the marriage was bona fide and started in good faith. It allows the government an opportunity, before granting permanent residency status, to test whether the marriage was legitimate and not entered into simply to grant residency status to a foreign national.

This central purpose is not diminished and does not go away if a marriage ends in death, separation or divorce (or where the conditional resident has been abused. Seeking a waiver of the form I-751 joint filing requirement in cases of separation or abuse does not grant free pass. Form I-751 petitioners must still need to prove that everyone’s intentions were honest and that the marriage was entered into legitimately and for the purpose of staying together.

The core function of the form I-751 petition, and the USCIS officers who review them, is to verify that people enter marriage for love and not for a green card. A good faith marriage is one that starts with the honest desire to build a life together. Fake or sham marriages are those entered into for reasons other than love, such as going around the immigration laws in order to give a foreign national the right to enter and reside in the US.

The government cannot know what happens inside the privacy of a couple’s home. To verify the authenticity of a marriage, USCIS requires couples to prove that their marriage is bona fide. Anyone who seeks to remove the conditions on US residency with a waiver must still understand that this central purpose of the I-751 process continues to exist. Proving that the marriage was bona fide and entered into in good faith – even where it may not have lasted or was marred by spousal abuse – is still required.

Proving that a marriage was bona fide needs proof, what lawyers call “evidence.” This can include pictures of all types of life events, wedding and travel records, birth certificates of children, or joint statements involving the co-ownership of bank accounts, insurance policies or property. There are many things that can prove a marriage was legitimate.

Waivers Cause Red Flags & Added Complexity

By not jointly filing with the US citizen / LPR spouse through whom conditional residence was obtained, the petition automatically gets a closer look. This not only means added scrutiny by the reviewing USCIS officer, but it also means additional burdens on the single-filing petitioner.

Even when filing together, a couple bears the burden of proving that the marriage was legitimate. A single petitioner bears the same burden and must prove that he or she entered the marriage in good faith and with honest intentions. The difference, however, is that the single petition must also state that the marriage cannot continue through no fault of the petitioner.

As is evidence from reviewing form I-751 itself, there are multiple options for seeking a waiver of the joint filing requirement. Multiple choices may apply to each individual situation. Each option has benefits and drawbacks. These options include:

Option A – I entered the marriage in good faith, but the marriage was terminated through divorce or annulment.

Option B – I entered the marriage in good faith, and, during the marriage, I was battered, or was the subject of extreme cruelty, by my US citizen / LPR spouse.

Option C – The termination of my status and removal from the US would result in an extreme hardship.

Selecting the appropriate option must be done carefully, thoughtfully and with a strategy in mind.

Filing a Form I-751

Submitting the form I-751 with a waiver to the joint filing requirement requires the following items to be included in the submission:

- USCIS filing fee (as listed at USCIS)

- A copy of both sides of your permanent resident card

- A copy of the divorce decree or annulment document that ended your marriage. (If this is not available, include evidence that the divorce proceedings have started.)

- Evidence of a “good faith” marriage.

- Evidence regarding the circumstances surrounding the end of your marriage (see below)

A personal statement or other type of evidence and evidence describing the circumstances of your divorce or pending divorce can also be helpful for the I-751 waiver.

It is also important to note the nature of the divorce: fault or no-fault.

Divorce by Fault of Ex-Spouse: Sometimes, a divorce is forced by the actions of one spouse. The divorce may be the result of a spouse’s conduct, such as infidelity, abandonment or imprisonment. In these cases, a copy of the divorce or annulment petition that details these facts should be included with the I-751.

No-Fault Divorce: Where a divorce ends due to irreconcilable differences or a mutual decision that the relationship is not working, the I-751 should explain that the divorce was a no-fault action and detail the differences that led to cause the marriage to end. Some examples of irreconcilable differences include: disputes over whether to have children, financial issues or lifestyle, where to live, parental involvement or anything else that might be relevant. Any attempt to save the marriage through counseling or mediation should also be detailed in the I-751 petition and the evidence of those efforts (such as bills from the marriage counselor) should be included.

Statements in the I-751 that suggest that the foreign national spouse was “at fault” in the divorce can negatively affect the petition. Consulting with an experienced attorney on this issue is recommended.

A conditional resident’s status may expire before a divorce becomes final. This is common given how long some divorce proceedings can take. And it can interfere with the expiration date of the conditional residency. In such instances, there are a few options to consider:

- File the I-751 with proof that you the divorce proceedings have begun. It is best to include copies of certain key filings and the scheduled court dates related to the divorce proceedings.

- Wait to file the I-751 until your divorce is finalized.. Again, this can carry serious risks so speaking with an experienced immigration lawyer is highly recommended.

If a conditional resident decides to file the form I-751 with a divorce waiver, USCIS will only grant the waiver if it receives proof that the marriage has in fact been terminated, such as a divorce decree or annulment. It is therefore a good practice to include evidence that a divorce has been initiated. This can include court documents that demonstrate the case was filed and is pending. Frequently, USCIS will mail a receipt notice (form I-797C) that extends the conditional resident’s green card for an additional period of time (usually 18 months) along with a “Request for Evidence” that asks for the final divorce decree to be submitted once it becomes available.

While joint I-751 petitions must be filed within the 90-day period before the conditional resident’s green card expires, those filing with a waiver after divorce can file the petition any time after conditional resident status is granted and before the conditional resident is removed.

It is also possible to seek a waiver even if the US citizen / LPR spouse refuses to a divorce or the couple is separated without any court action. In these cases, the conditional resident can demonstrate “extreme hardship” as a basis for the waiver. However, to do so is difficult. That is because the phrase “extreme hardship” can be difficult to define.

While USCIS has indicated that the hardship must have arisen after the conditional residency began, there are no specifically defined requirements for what “extreme hardship” actually entails. Some factors that might be considered by USCIS include:

- The age of the conditional resident and how long he/she lived in the US

- The age, number and immigration status of the conditional resident’s children (as well as the children’s ability to speak the language or adjust to life in another country)

- The health of the conditional resident and/or the health of the conditional resident’s child(ren), spouse, or parent

- The ability of the conditional resident to earn income or find a job in the conditional resident’s country

- The conditional resident’s family ties in the US

- The financial impact of the conditional resident’s departure

- The Impact of a disruption of educational opportunities

- The psychological impact of the conditional resident’s removal

- The political and economic conditions in the conditional resident’s country

- The family and other ties in the conditional resident’s country

- The conditional resident’s contributions to and ties to the US

- The conditional resident’s immigration history

- The conditional resident’s interview

After filing the form I-751 with a waiver, the petitioner should expect to attend an interview at the local district office where the conditional resident lives. Petitions with waivers are decided on a case-by-case status. So every detail counts.

Finally, if the conditional resident was battered or suffered extreme cruelty, they can seek a waiver on that ground as well. USCIS uses a straightforward understanding of battery: physical violence committed against someone. This can include punching, slapping, pushing, any other infliction of bodily injury, and forced sex. USCIS defines extreme cruelty as nonviolent abuse intentionally inflicted upon someone in order to dominate, control, or humiliate. If a conditional resident was battered or suffered extreme cruelty at the hands of their US spouse, they may also seek permanent residence status based on other legal means (such as the Violence Against Women Act aka VAWA), regardless of their gender.

Final Considerations

In almost all situations in which a foreign national obtains conditional residency by marrying a US citizen or LPR, they were sponsored by the US citizen / LPR spouse. As such, the sponsoring spouse signed a form I-864, Affidavit of Service, which entitles the sponsored immigrant to monthly financial payments. If a conditional resident earns less than roughly $1,342 per month, their sponsor is legally obligated to pay them. This is an important right to keep in mind for all green card holders that have separated from their sponsors, especially those that are financially struggling.

Any conditional resident that is contemplating filing a form I-751 petition, but is unable do so jointly with their spouse, has options. But the options create complexity and have pros and cons attached to them that require careful consideration.

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