Foreign-born persons who obtain U.S. residence based on a recent (within the previous two years) marriage to a U.S. citizen receive a “conditional,” rather than permanent green card. It expires in only two years.
The normal way to solve that is for the immigrant and spouse, during the 90 days before this expiration date, to jointly file Form I-751, Petition to Remove the Conditions of Residence with U.S. Citizenship and Immigration Services (USCIS).
But what if, for some reason, the U.S. spouse can't or won't sign the joint petition?
Fortunately, there are several situations in which the immigrant (or his or her immigrating children) can file Form I-751 alone, along with a request for a waiver of the joint-filing requirement. These include where:
With any of these four waivers, you aren't limited to filing Form I-751 within the 90-day window. You can file it either before that or after the two-year deadline has passed, assuming you can get the form in before immigration authorities have actually deported you for being in the U.S. unlawfully (or on some other grounds).
Let's take a closer look at these four waiver possibilities.
This is the most straightforward of the waivers. To apply based on death of the U.S. spouse, when filling out Form I-751 Part 3, you'll leave Questions 1.a and 1.b blank; then, under the section called "Waiver or Individual Filing Request," check box 1.c.
You will need to include a copy of the U.S. spouse's death certificate, as well as recent documents (since receiving conditional residence) showing that your marriage was bona fide (not a fraud to get the immigrant a green card). You've submitted such documents in the past; for example, bank and credit card statements, apartment leases or home mortgage payments, children's birth certificates, and so on.
This type of waiver is also relatively simple. The main issues are that the divorce must be final before you can file for this waiver, and you must show that the marriage was bona fide (not a fraud to get the immigrant a green card) in the first place.
Depending on where you live, the procedures for getting a divorce can take many months. Talk to a lawyer if you're having trouble with this.
When filling out Form I-751 Part 3, you'll leave Questions 1.a and 1.b blank; then, under the section called "Waiver or Individual Filing Request," check box 1.d.
You will also need to include a copy of the divorce certificate as well as recent documents (since receiving conditional residence) showing that your marriage is real. You've submitted documents of this type before; for instance, bank and credit card statements, apartment leases or home mortgage payments, children's birth certificates, evidence that you saw a marriage counselor, and so on.
This is a more challenging type of waiver to apply for. It's available if the U.S. spouse (or parent, or the immigrant parent) subjected you to “any act or threatened act of violence, including any forceful detention, which results in physical or mental injury. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution shall be considered acts of violence.” (See 8 C.F.R. § 216.5(e)(3)(i).)
The law does not require the immigrant to be divorced or even separated from the U.S. spouse when applying for this.
When filling out Form I-751 Part 3, you'd need to leave questions 1.a and 1.b blank; then, under the section called "Waiver or Individual Filing Request," check box 1.e. Or if you're a child and were abused by either the U.S. citizen or immigrant parent, check box 1.f.
Include a copy of evidence showing that you were the victim of abuse, such as medical and police reports, affidavits from friends and neighbors, and so on. And if you did divorce owing to the abuse, submit evidence of that, as well.
This tends to be the hardest type of waiver to qualify for. The immigrant must show that political or economic changes arose in the home country country since he or she became a conditional resident, and that these would cause him or her extreme hardship upon return. (See I.N.A. § 216(c)(4)(A).)
It's not unlike applying for asylum in the U.S., but can be much broader; it doesn't need to have a political element, for example, but could be based on the person being unable to support him- or herself there.
A significant feature of this waiver is that the immigrant doesn’t need to prove a good faith marriage. Nevertheless, evidence of marriage fraud could weigh against a grant of permanent residence.
To apply, when filling out Form I-751 Part 3, leave Questions 1.a and 1.b blank; then, under the section called "Waiver or Individual Filing Request," check box 1.g.
You would also need to submit documentation showing the nature of the hardship. News reports and other evidence of changed country conditions are a good start, as well as letters or reports from a person in authority showing how this would affect you personally.
Assuming your application is complete, USCIS will, after giving it an initial look-over, send you a receipt notice. This is your proof of status until USCIS decides your case. Next, USCIS will schedule you for a biometrics appointment and possibly an in-person interview at one of its local offices.
After your application is approved, your conditional resident status will be converted to permanent residence.
