Waiving the Joint Filing Requirement for Form I-751

Both the U.S. citizen and Permanent Resident spouse are required to file form I-751 with USCIS, but as with all rules there are exceptions.

Can I File Form I-751 Petition to Remove Conditions on Residence By Myself?

The I-751 Petition to Remove Conditions on Residence is the form that needs to be filed with the USCIS in order for your immigrant spouse’s residency to change from a “conditional” status to a permanent resident.

Though only one of you is applying to become a permanent resident, both of you are required to file the I-751 with USCIS. This rule is set forth in the instructions for the I-751 form, but as with all rules there are exceptions.

Exceptions

The USCIS lists 5 situations that may allow a conditional resident married to a U.S. citizen to apply for a waiver of the joint filing requirement:

  1. You married a U.S. citizen in good faith, but your spouse has since died.
  2. You married a U.S. citizen in good faith, but have since divorced or annulled.
  3. You married a U.S. citizen in good faith, but have since been subject to extreme cruelty by your spouse
  4. You are the child of a conditional resident and have been subject to extreme cruelty by either your conditional resident parent or their spouse
  5. Termination of your status and removal would result in extreme hardship

Due to the upsetting nature of these exceptions, we hope that you do not find yourself needing a waiver of the joint filing requirement. However, life does not always go as planned. This article provides some instruction on how to obtain a waiver of the joint-filing requirement for each of these exceptions.

Bear in mind that any difficult legal situation may require the assistance of an attorney, and we highly recommend that you consult an attorney if you discover you are in need of an immigration waiver.

How to File a Waiver of the Joint-Filing Requirement

Unlike many other immigration waivers, you will not need a separate form to waive the joint filing requirement to remove conditions on your residency. In Part 2 of form I-751 you can check the box for one of the aforementioned five exceptions.

You should submit a notarized letter with your I-751 explaining which exception you are trying to be granted along with any documents that support your assertion that you are eligible for that specific exception.

Additionally, you should provide any other evidence that shows your marriage was made in good faith.

Death of Spouse Waiver

If your petitioning spouse has passed away before you were able to become a permanent resident, you should mail a copy of the death certificate, or any other evidence of their passing, with your I-751 as evidence for your waiver.

This exception should not be difficult to prove, as deaths are usually recorded by the county or city.

Divorce Waiver

If you cannot file the I-751 jointly because you and your spouse have since divorced, you will need send a copy of the divorce decree with the form.

If you have filed for divorce but it is not yet finalized, you can provide other legal paperwork to prove your divorce filing. If your divorce is not finalized, and your petitioning spouse is willing to file the I-751 jointly, you will not need to file for a waiver. You may jointly file the I-751 as a married couple, even if you have filed for divorce but it has not been finalized.

Example: Charles, a U.S. citizen, was the petitioning fiancé for Dominica. Since getting married, Dominica and Charles have had a child but unfortunately realized that they are not compatible as life partners. 30 days before Dominica’s conditional residency expired, the two filed for divorce.

Charles wants Dominica to remain in the United States and help raise their child, so he is willing to file an I-751 with Dominica. Their marital status is still married in the eyes of the law, and thus they do not need to file for a waiver of joint-filing requirements.

Extreme Cruelty – Spouse or Child

This exception will be more difficult to document. You do not need to be divorced to file for this waiver, and the USCIS will not notify your petitioning spouse that you have filed for the extreme cruelty waiver.

Due to the traumatic nature of this exception, it is suggested that you seek an attorney to help you prove both that your marriage was made in good faith and also that extreme cruelty occurred. As a victim of physical or psychological abuse, you may be eligible for nonprofit assistance or legal aid representation.

Extreme Hardship Waiver

To be granted this waiver, the immigrant must reach a higher threshold of evidence. They must be able to prove that if their conditional residency expired and they had to return to their home country that they would suffer extreme hardship.

Immigrants typically use the current political or economic situation in their home country to gain the extreme hardship exception. The exception also applies to family members here. If your relatives would suffer extreme hardship if you returned to your home country because they rely on your income, then you may qualify for this hardship waiver.

Additionally, if you have a serious medical condition that you could not receive adequate care in your home country, you may be able to use this exception to stay in the United States.

Similar to the extreme cruelty exception, it is strongly encouraged that you seek the assistance of an attorney if you plan to file for a waiver of joint requirements due to extreme hardship.

After Filing the I-751 with a Joint-Filing Waiver

After you have sent your I-751 and accompanying documents to the USCIS, you should receive a receipt by mail once they have received it. This receipt will extend your conditional residency for another 12 months while USCIS processes your paperwork.

During that 12 months, it is possible that you will be called to an interview with USCIS. An interview at this stage is not exclusive to those who file waivers with the I-751, but it is more common for those who filed waivers to receive interview requests. During the interview, the USCIS official will probably ask you about the waiver you filed to learn more details about your situation. If you hire an attorney, they will be able to attend this interview with you.

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