Most applicants that are married less than 2 years to a US citizen must file form I-751 to remove the conditions. The Immigration Marriage Fraud Amendments of 1986 (IMFA) contained a requirement to file a Petition for Removal of Condition during the 90-day period preceding the second anniversary of the noncitizen’s acquisition of resident status.
The petition is to be filed jointly by the U.S. citizen or lawful permanent resident spouse and the conditional resident (CR). IMFA also allowed for a waiver of the joint-filing requirement based on specified grounds if the joint petition could not be filed. The IMFA was modified in 1990 (IMMACT90), and broadened the grounds for filing a waiver of the joint-filing requirement.
Currently a conditional resident can obtain a waiver of the joint-filing requirement and can show that he or she qualifies on one of three distinct bases: (1) extreme hardship to the CR if removed; (2) a good-faith marriage that has been terminated (by means of divorce); or (3) a good-faith marriage during which the CR or child suffered battery or extreme cruelty at the hands of the spouse. The CR files the waiver on Form I-751.
1. Extreme Hardship Waiver:
Under the Immigration and Nationality Act (INA), a conditional resident who can show that extreme hardship would result if such alien is removed, is eligible to have the joint-filing requirement waived and the conditional basis of resident status removed. The extreme hardship can be to the CR, a dependent child, or a subsequent spouse. The marriage that gave rise to the conditional resident status may have been terminated or not. Subsequent remarriage is not a bar to the hardship waiver. Currently areas of concern and controversy regarding the provision include the definition of “extreme hardship,” the period of time in which the hardship must have arisen, and whether the applicant must evidence a good-faith marriage.
There are at least 10 criteria relevant to determining whether a deportation will cause extreme hardship. These include (1) the alien’s age; (2) family ties in the United States and abroad; (3) length of residence in the United States; (4) health conditions; (5) economic and political conditions in the alien’s home country; (6) occupation and work skills; (7) immigration history; (8) position in the community; (9) whether the alien is of special assistance to the United States or to the community; and (10) whether there are alternative means to adjust status. Lawyers are well advised to use and evidence all factors that will give rise to hardship, including seemingly minor ones, as these can be viewed in the aggregate.
2. Waiver for Good-Faith Marriage that has been terminated:
The Immigration and Nationality Act allows for a conditional resident who can show that the qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated (other than through the death of the spouse) and the alien was not at fault in failing to meet the requirements of joint-filing, is eligible to have the joint-filing requirement waived and the conditional basis of resident status removed.
There is no controversy that this good-faith marriage waiver requires a showing that the conditional resident entered into the marriage in good faith. The job for the lawyer is to determine what documents will evidence this requirement and how to present certain documentation. Furthermore, the INA makes clear that any credible evidence relevant to the application must be considered. The burden evidencing the good faith however, lies squarely with the applicant. Consequently, it is imperative that your lawyer bring forth the necessary evidence to substantiate a good-faith marriage.
Since, this good-faith marriage waiver basis requires that the qualifying marriage be terminated, it places many conditional residents in a difficult situation if their divorce has not become final prior to the deadline to file.
3. Waiver for Good-Faith Marriage – Battery/Extreme Cruelty (Abuse):
As with the waiver based on a good-faith marriage that has been terminated,
the battery (abuse) waiver basis clearly requires that the conditional resident show evidence of a good-faith marriage to quality for the waiver. In addition, extreme cruelty must be documented by providing for the use of any credible evidence in support of the waiver. This often includes evidence from a licensed clinical social worker, psychologist, or professional.
Although the INA does not provide much guidance as to what constitutes battery or extreme cruelty, regulations do state that, “was battered by or was the subject of extreme cruelty includes, but is not limited to, being the victim of any act or threatened act of violence.” Lawyers can also show that less egregious acts also may suffice to meet the required showing for battery and extreme cruelty. Evidence of physical abuse may include, but is not limited to, expert testimony in the form of reports and affidavits from; police, judges, medical personnel, school officials, and social service agency personnel.
In conclusion, even though the law provides for waivers of the joint-filing requirement for conditional residents, each waiver basis presents legal and standard-of-proof requirements that may be difficult to evidence. Early planning and the assistance of a qualified immigration lawyer is the best way to success. Lawyers who arm themselves with the knowledge and expertise, can overcome the obstacles that lead to successful prosecution of I-751 joint-filing waivers.