I-751 Waiver After Divorce:
The conditional resident normally files jointly with the spouse. Once approved, U.S. Citizenship and Immigration Services (USCIS) grants the conditional resident status as a lawful permanent resident and provides a 10-year green card. But what if the conditional resident gets a divorce or annulment before the two-year period ends? Or what happens if the spouse is abusive and refuses to file the joint petition? The I-751 waiver after divorce provides a solution to this difficult situation.
USCIS will allow a conditional resident to remove conditions on residence after divorce or other events that make it impossible to file a joint petition with the spouse through whom he or she gained conditional residence. In these cases, the conditional resident must file the petition with a request that the joint filing requirement be waived, commonly known as a waiver. The conditional resident can still become a lawful permanent resident, but it’s not a simple matter. The stakes are high. USCIS will more closely scrutinize the I-751 petition. And an unsuccessful petition may result in removal proceedings for the conditional resident.
I-751 Waiver Also Requires a Good Faith Marriage
If a marriage has been terminated due to death or divorce, and even if the spouse has abused the conditional resident, there’s still an important requirement to prove it started as a good faith marriage. The I-751 waiver after divorce is not a free pass; you’ll need to prove your intentions were honest when you entered the marriage.
USCIS wants to verify that you entered the marriage for love, not for a green card. A good faith marriage is one that is built on love and starts with the genuine desire to build a life together. A fraud or sham marriage is when an individual enters into the marriage for the purpose of going around immigration laws to falsely acquire immigration benefits.
USCIS can’t know what happens inside the privacy of a couple’s home. Therefore, USCIS needs the petitioner to prove his or her own good faith marriage by presenting evidence. Anyone attempting to file to remove the conditions on residence with a waiver after divorce needs to understand that there is still an important requirement to prove a good faith marriage. Wedding records, birth certificates of children, and joint financial records are examples of documents that can be used to prove a good faith marriage.
Waiver Creates Additional Burdens of Proof
By not filing jointly with the spouse through whom conditional residence was gained, a petition automatically raises red flags. There is a burden of proof for the single petitioner to prove that he or she originally entered the marriage in good faith and the marriage cannot continue through no fault of the petitioner.
Waiver without a Divorce – Extreme Hardship
At Prizant Law, our client often ask will it be possible to file an I-751 waiver even if the spouse refuses to a divorce or the couple is separated and a legal divorce was never filed with the court? If the conditional resident can demonstrate “extreme hardship,” he/she may be eligible to file the I-751 on this ground. Establishing an extreme hardship case can be very difficult. For this reason, the petitioner should always obtain the assistance of an experienced immigration attorney.
Extreme Hardship can be difficult to define. USCIS has made clear that the hardship must have arisen after the petitioner received conditional residence. Beyond that, there are not specifically defined requirements for an extreme hardship. An attorney can help you with this process. USCIS may consider the following factors in an extreme hardship case:
- Age of the conditional resident
- If the conditional resident has children, the age, number, and immigration status of the children and their ability to speak the language or adjust to life in another country
- Health of the conditional resident and/or health of the conditional resident’s child, spouse, or parent
- The conditional resident’s ability to earn income and find a job in the country to which he/she would return
- Conditional resident’s length of residence in the U.S.
- Conditional resident’s family ties in the U.S.
- Financial impact of the conditional resident’s departure
- Impact of a disruption of educational opportunities
- Psychological impact of the conditional resident’s removal
- Current political and economic conditions in the country that the person would return
- Family and other ties in the conditional resident’s country
- Conditional resident’s contributions to and ties to the U.S.
- Conditional resident’s immigration history
Contributed by Svetlana Prizant, an Award Winning Queens Immigration Lawyer
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