I 751 Waiver: When filing jointly with your spouse is not possible.
If you received a green card through marriage (formally known as Adjustment of Status), and your marriage was less than 2 years old at the time of approval, you received a conditional green card (CR1) that lasts for 2 years.
When this time period is about to expire, you need to move from the conditional permanent resident status to the Permanent Resident Status. This is usually done by submitting jointly with your spouse the I 751 form petition to remove conditions on residence, which, when approved, grants you a green card that is valid for 10 years (IR1).
But what happens when this is not an option? What if due to different circumstances you are no longer together with your spouse? The answer is that you might still be able to remove the conditions of your residency by filing a waiver.
There are basically 4 circumstances by which a waiver is possible:
Let’s discuss each one of them.
Filing an I 751 divorce waiver
If you (the green card applicant) and the U.S. citizen divorce before two years of marriage, you can still file the Form i 751 Petition to Remove conditions on green card to continue to live in the U.S. The process will be a little more complicated though, since you will have to request for a waiver of the joint filing requirement.
In the case of a divorce, your task is to gather enough documentation to show that the marriage was a good-faith marriage, or bona fide, and was not just an “easy” way to get a green card. This could include proof that you have children together, evidence of shared resources, a family home, shared insurance and estate documents, photographs together, gifts offered or correspondence between the applicant and the U.S. citizen, etc. Another task is to prepare evidence of the reason the marriage ended, to prove it was not your fault. For instance, the applicant can provide evidence of having attempted marriage counseling. Also, the longer the marriage lasts, the better to prove it was a bona fide marriage.
Can you file the waiver before the divorce is final?:
If you must file the waiver before the divorce is final, you have 3 options:
- – You can file the i 751 form with a waiver based on abuse or extreme hardship in the home country (more details about this option in section below).
- – You can file for divorce, and file the i 751 form with evidence that the divorce proceedings have been initiated. USCIS will send a “Request for Evidence” within 90 days to ask for the final divorce decree. However, if the divorce is not finalized within that period of time, you may be placed into removal proceedings.
- – You can wait until the conditional Green Card expires and file for a waiver when placed into removal proceedings.
Because requesting a waiver based on divorce is a red flag for USCIS, an immigration lawyer can greatly increase your chances of success (especially when trying to prove the marriage started as a good faith marriage).
Contact us at (213) 375-4084 to get our help.
Filing a waiver after death of spouse
Under the unfortunate event of the U.S. citizen passing away, the applicant may still apply to remove the conditions on his/her green card. In order to do this, the applicant must file the waiver based on the death of the petitioning spouse. If this is your case, you would have to submit a copy of your spouse’s death certificate. On top of this, other evidence is still required, such as evidence of the marriage being a good faith marriage when started.
Filing a waiver due to an abusive marriage
If you were a victim of violence, were battered or subjected to extreme cruelty, you can waive the requirement of the joint filing of the i 751 form. In order to submit this waiver, you will have to submit evidence of the abuse. If you ever reported domestic violence events, if you ever made a record of injuries (medical reports for example), these can be used as evidence.
The USCIS understands that having concrete evidence of violence is not easy and that most cases of abuse and violence happen inside of the house without witnesses and are known only to the couple, so they have stated the following:
“NOTE: With respect to abuse waivers, you may file your form with any credible evidence relevant to the application. The determination of what evidence is credible and the weight to be given is within the sole discretion of USCIS.”
If you are under the unfortunate circumstance of an abusive marriage, please do not hesitate in contacting us at (213) 375-4084 so we can help relieve the weight of the immigration matter.
Filing a waiver due to extreme hardship in home country if put into removal proceedings
If you are under conditional permanent residency status and need to remove the conditions of your green card but you are no longer together with your spouse, the i 751 with a waiver can help you get your permanent green card. The last category of waivers is the extreme hardship category.
It applies if you think that by not obtaining permanent residency and being put into removal proceedings (eventually deported) you will face extreme hardship or extenuating circumstances in your home country.
The term “extreme hardship” does not have an explicit definition and it is up to USCIS to determine if the circumstances of the case presented can be classified as “extreme hardship”.
What happens after you file the I 751 form with a waiver?
After you file the i 751 form, USCIS will issue a receipt notice confirming they received your application within 1-2 months. This receipt is known as I 797c notice and it will aid you in proving your permanent resident status while your i 751 application is being processed, allowing you to continue to live and work in the United States.
USCIS may submit an RFE or request more evidence and schedule appointments with you. Indeed, most petitions to remove conditions that are filed with a waiver of the joint filing requirement are referred to a local office for an interview about the marriage and divorce. Getting help from an experienced immigration attorney will greatly help you prepare for this process and potentially avoid an RFE.
Once the USCIS case status changes to approved, you will be receiving your permanent green card shortly via mail.
How much is the filing fee?
The Department of Homeland Security (DHS) announced a considerable increase in immigration fees starting October 2nd, 2020. Any application, petition, or request postmarked on or after this date must include payment of the new, correct fees established by this final rule.
Current (post-October 2nd 2020) Government fees payable directly to the U.S. Department of Homeland Security are:
- – I-751 Petition to Remove Conditions on Residence: $760
- – Biometrics: $30
You might also be interested:
- I-751 Form
- Green Card through Marriage
- Same-Gender Marriage
- How long does it take to get a green card through marriage?