Form I-751, Removal of Conditions Waiver Applications and a Deep Dive into Divorce Waivers
If you become a resident based on a recent marriage (less than two years) you become a “conditional” permanent resident (conditional Green Card holder). Normally, you would file a petition with your husband or wife on the two year anniversary of your permanent resident status (90 days before the two years to be exact) in order to obtain a permanent ten year Green Card. If the marriage ends before your petition is filed, or your spouse refuses to cooperate with your petition – you may still be eligible to become a permanent resident and remove conditions on your Green Card successfully.
What do you need to be eligible for an I-751 waiver?
There are three different ways that you can apply for an I-751 waiver:
Divorce + good-faith marriage. If your divorce is finalized by the deadline for your I-751 petition then you may be eligible for this option. You may also use this option if your spouse has passed away. The I-751 petition is due two years after your conditional residency card was issued. If your divorce is almost finalized USCIS will generally grant a short additional window for you to file proof of the finalized divorce (but the I-751 petition still needs to be filed on time). To use this strategy you are also required to show that the marriage was genuine and you intended to live as a married couple at the time you entered the marriage. To prove that we use the same sort of evidence you may be familiar with from your initial marriage-based application process. If you obtain your final divorce before the 90 day period, you are eligible to file your removal of conditions at the time your divorce judgment is final.
Abuse by U.S. Citizen spouse. If were abused by your US spouse this option may be available to you. The abuse does not need to be physical in nature. Even purely psychological abuse can serve as the basis for a successful I-751 petition. In such cases we would typically recommend submit an evaluation by a psychological expert amongst other important documents.
Extreme hardship. The final way to seek approval of an I-751 waiver is by showing the hardship you would experience if you were forced to return to your home country. See below for more information about proving hardship.
Whose hardship matters?
For I-751 waivers, USCIS looks at whether the petitioner would experience hardship if forced to leave the US—the petitioner is the conditional resident spouse for the purposes of removal of conditions. In other waiver applications the focus is on family members, but here the focus is on the petitioner herself.
What factors will be considered?
Immigration law does not define the term “hardship”. Instead, court cases have said that the following factors should be considered: age; length of presence in the US; family ties to the US vs family ties in the foreign country; community ties; financial impact; health issues; and, the availability of immigration benefits.
What evidence is presented?
It is very important to present strong evidence in support of a hardship case. Much of this evidence should be primary evidence and not circumstantial. The attorney will work with the immigrant, family members, and friends to write detailed letters explaining the circumstances of the case. These letters must be carefully prepared to address the relevant legal question. The attorney will also work with you to locate records that support your case, including medical, financial, employment and education records. In cases with special health or psychological circumstances, it may be useful to have a psychologist conduct an evaluation.
Can I apply under more than one basis if applicable?
Yes! Many times we will file the removal of conditions waiver applications under more than one basis. Also, legally it is important to select all options that are applicable because we want to preserve ALL issues for appeal. This means that if you do not select the bases that apply to you and if the case is denied, you cannot present any evidence on the bases that you did not select when you appeal your case.
What happens if I get divorced when my spouse is petitioning for my permanent residence?
Couples who divorce while applying for immigration are often prevented from having their foreign spouse become a permanent resident. USCIS will cancel the I-130 petition if it becomes aware of the divorce before it is approved (this is formally called a revocation) although the petition is not automatically revoked. Even though it is unusual, it is feasible for the foreign national to finish the residence application procedure after being divorced. This would be very improbable if the residence application was submitted while the applicant was already in the country (referred to as adjustment of status) since they would both need to appear for a pre-approval interview. However, a foreign person might finish a marriage-based visa interview before the consulate was made aware of a divorce since US spouses do not attend visa interviews at consular postings.
After a divorce, a foreign spouse who succeeds in getting a marriage-based permanent marriage may be punished financially. The spouse might face procedures to have their residency status revoked since they very definitely violated immigration law's definition of fraud. However, it is crucial to remember that revocation of residency would need legal action taken by USCIS and would not occur automatically.
If a divorce takes place before the foreign spouse obtains residency, a foreign spouse is not always without choices. The Violence Against Women Act may allow a foreign national to "self-petition" if they have been the victim of violence by her American spouse (VAWA). The VAWA also allows a kid who has been the victim of abuse by the US spouse to self-petition. It is not a requirement for these petitions that the US Citizen spouse has been prosecuted or found guilty of a crime. Instead, the self-petitioner is free to support their allegations of abuse with whatever reliable proof.
What happens if I get divorced during my two years of conditional residency?
A sort of probationary status is granted to a person whose short-term marriage provided the basis for obtaining permanent residence in the United States. This "conditional" permanent residence has repercussions for both spouses as a couple who are divorcing. Once the conditional resident spouse gets divorced from their US Citizen spouse, they find themselves in a vulnerable position and may not be able to continue living in the US legally.
The foreign spouse must submit Form I-751 Petition to Remove Conditions of Residence 90 days before the second anniversary of their conditional status. The form does not state that the conditional resident must be presently living with their US Citizen spouse, but both parties must sign the petition together. The foreign spouse must request a waiver of the joint filing requirement if the documents are not signed jointly.
A US Citizen spouse who is divorced from their foreign national spouse may agree to sign the I-751 petition jointly even though they are not living together. This is because relationships are complicated and it is not unusual when couples want to get back together or when there has been a non-hostile split and the U.S. citizen spouse supports the conditional resident spouse keeping their US resident status. Sometimes the couple has a child and although things are not working out, the US Citizen spouse may want their spouse to remain in the US. Generally speaking, a notice of interview for the I-751 petition will be sent to the US spouse, and their presence is required as mandatory at the interview. The foreign spouse will wish to present joint records of the parties for a properly documented petition to prove the legitimacy of their marriage.
What if we are separated but not divorced?
The immigration status of a foreign spouse is often unaffected by physical or legal separation, as opposed to divorce. The main effect of separation is that it can cast doubt on the validity of a marriage that served as the foundation for immigration status. If the interviewing officer understands that the couple is separated but have not filed for divorce, they most definitely will dig deep and ask the couple many questions regarding their marriage, their reason to separate and the reason they have not yet filed for divorce. They would want to make sure the couple has not avoided filing for divorce and is manipulating the immigration process.
If separated from their US Citizen souse, the foreign national spouse who has obtained unconditional permanent residence as a result of a marriage will not lose this status. Unless willingly or involuntarily terminated, this status is kept by the person for life as long as they do not lose it through deportation based on, for example, serious criminal activity or fraud. The person may continue to live in the US without making another application on the basis of marriage. The Form I-90 to extend the ten year Green Card must be submitted every ten years to renew the person's residence card, however, the foreign spouse doesn't need to provide information about their marital status in this submission. In addition, it should be highlighted that the person retains their legal standing as a resident even after their residence card has expired. This legal status is separate from the card's validity, which is just evidence of the legal status.
One issue that can be problematic is if the conditional resident spouse receives a Request for Evidence (RFE) from USCIS which is very commonly issued. This RFE often requests additional and recent evidence of the marital relationship and if the couple is separated at this time, they will not be able to send in anything new to USCIS. Since we always suggest that clients be honest with USCIS in order to maintain their short term and long term immigration status, we recommend that the client think about whether it is a good time to pursue a divorce and file an amendment to the I-751. This is because the client will get an opportunity to come clean with USCIS and provide an explanation as to why they do not have additional evidence of the marital relationship while positioning themselves to keep their Green Card via a waiver case. They can still have the US Citizen spouse her them by writing an affidavit in support of their spouse, although the US Citizen spouse will not be required to attend the I-751 interview.
If a couple is not living together but haven’t filed for divorce yet, this in and of itself will not automatically end a person's right to permanent residency. It will, however, extend the amount of time the foreign spouse must wait before applying for citizenship. Contrast this with an individual who became a permanent resident by marriage and is still with their US Citizen spouse three years into their permanent resident status. The resident must have lived "in marital union" with the American spouse for at least three years to benefit from the accelerated route to US citizenship.
Oftentimes, the evidence used in these cases is not of the black and white variety, so we end up using a lot of different kinds of evidence such as lengthy affidavits. We provide our clients with sample affidavits from successful cases so that our clients can provide us with the impactful statements that we need. We use a jigsaw puzzle approach in difficult cases in order to establish our client’s credibility, which can be challenging when the US Citizen suppose is not cooperating.
Should you or your loved one have any questions, call us, email us at info@khunkhunlaw.com or review other options to get in touch with us for an immigration consultation. We have represented many clients with successful results even with the most difficult set of facts.