Waiver Petitions to Remove the Conditions of Residence Based on Divorce I-751

If certain extenuating circumstances prevent you from receiving your U.S. citizen spouses’ sponsorship for removing your condition in a joint petition, you should consult an experienced immigration lawyer. Your Austin immigration lawyer can help you prepare a waiver for the joint filing requirement, as well as a thorough application to show your marriage was bona fide under immigration standards.

Waivers are generally available for couples who are divorced. There are also additional waivers of the joint filing requirement available for spouses who have been battered or subjected to extreme cruelty, and lastly, for cases in which the U.S. citizen spouse has died. If you meet any of these scenarios, you might qualify to file your application on your own as a “waiver.”

You will still need to submit Form I-751, but will have to include a request for a “waiver” of the joint filing requirement. The waivers most likely to be relevant to your case are based on:

  • divorce after a good-faith marriage
  • abuse or battery by your U.S. spouse in a good-faith marriage, and
  • extreme hardship to you, the immigrant, if returned to your country of origin.

You can file Form I-751 at any time if you have a final order of divorce or annulment. That’s true even if your conditional green card is not close to its expiration date.

What happens if you haven’t yet filed for divorce or your divorce is not yet final?

  • If you have separated from your U.S. citizen spouse or he or she refuses to file Form I-751 with you, consult with an experienced immigration lawyer. You will need to make some strategic decisions as to how best to proceed. In such a case, you have a few options:
  1. Remain married and file Form I-751 with a waiver based on “extreme hardship” or “battery or extreme cruelty” if either applies to you.
  2. File for divorce and mail the Form I-751 with evidence that you have initiated divorce proceedings (though this is risky, as explained below), or
  3. Wait until your conditional residence expires and you are placed into removal proceedings to file for a waiver.
  • If you cannot wait to file the I-751 until your divorce is final (as might be the case if the two-year deadline is about to expire or if you are already in removal proceedings), USCIS gives you some leeway. USCIS will accept your I-751 without evidence of a final divorce, and then send you a “Request for Evidence” (RFE) asking for the final divorce decree within 87 days.
  • If your divorce is not finalized within that time, you will most likely be placed into removal proceedings, or if you are already in removal proceedings, the judge might not give you a second chance to file another I-751.

When to Submit Evidence About Why You Divorced

You also might want to submit a personal affidavit or other evidence regarding the circumstances of your divorce in order to prove that it was not your fault that the marriage ended. For example, you can provide evidence of:

  • No-fault divorce:If the divorce petition was initiated due to irreconcilable differences or a mutual understanding, you should state that the divorce was a no-fault action and the differences that led to the end of your marriage (disagreements about whether to have children, where to live, or anything else that is relevant).
  • The divorce having been your ex-spouse’s fault:If you alleged grounds for divorce or annulment such as adultery, abandonment, impotency, or imprisonment, you should submit a copy of the divorce or annulment petition that alleged those fault grounds or documents that tend to prove those grounds. You can also provide affidavits from people who knew you and your ex-spouse attesting to the fact that the divorce was the fault of your former spouse.
  • Having attempted marriage counseling: If you and your ex-spouse engaged in marriage counseling sessions prior to your divorce, you can provide invoices for those sessions or evidence that you tried to convince your former spouse to go to a marriage counselor. This could include emails to your ex-spouse or evidence that you contacted a counselor during your marriage (emails to a counselor or a letter from a counselor stating that you requested information from his or her office). This also helps prove that the marriage was bona fide.

My Spouse Is Refusing to A Divorce, Can I Still File with A Hardship Waiver?

If your spouse refused to accept a divorce or you are currently separated, you can still file an I-751 hardship waiver. If you can demonstrate “extreme hardship,” you may be eligible to file the I-751 on this ground.

Extreme hardship can be difficult to define and the USCIS has made clear that the hardship must have happened after you received conditional residence (2-year green card).

Factors in An Extreme Hardship Case:

  • Your age
  • If you have children (their age, number, and immigration status of the children)
  • Your health (and health of child, spouse, or parent)
  • Your ability to earn income and find a job in the country to which he/she would return
  • Your length of residence in the U.S.
  • Your family ties in the U.S.
  • The financial impact of your removal
  • The impact of a disruption of your educational opportunities
  • The psychological impact of your removal
  • The current political and economic conditions in your home country if you returned
  • Family and other ties in your home country
  • Your contributions to and ties to the U.S.
  • Your immigration history

Final Note:

After filing Form I-751 with a hardship/divorce waiver, you should expect to attend an interview at the local district office where you live. Petitions with hardship waivers are decided on a case-by-case status. There is no such thing as too much evidence. It is essential that you consult with an experienced immigration attorney to assist you along the way.

An Austin immigration lawyer – Abogados de Inmigracion en Austin TX – can help you determine if an I-751 waiver petition to remove the condition on residence may benefit you or your family. Learn more by contacting Michael G. Murray, P.A today!

Coronavirus update: We are safely open for business! USCIS is still accepting new filings for all applications. Our office is offering virtual consultations for new clients so that you don't have to come to our office in person. Call us to schedule your virtual meeting today.
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