When an applicant is facing the deadline to remove the conditions of his or her lawful permanent residency status, and the marriage on which the initial I-130 petition and conditional residence were based is on life support, deciding how and when to file the Form I-751 Petition to Remove the Conditions of Residence requires careful planning. The following provides a summary of the I-751 available waivers.
Differences Between Jointly-Filed Petitions and Waivers
There are some key differences between I-751 Petitions filed jointly and those filed under one of the waiver provisions. If a conditional permanent resident (CPR) is filing an I-751 Petition jointly, with the petitioning spouse, and files after the expiration date of the LPR card, he or she will need to include an explanation of the late-filing with the I-751 Petition. However, if filing under one of the waiver grounds, the CPR does not need to provide such an explanation. A waiver can be filed prior to or after the expiration of the LPR card up until the date an immigration judge issues a final order of removal.
While the burden of proof is on U.S. Citizenship and Immigration Services (USCIS) to prove fraud in jointly-filed I-751 petitions, the burden shifts to the alien in a case filed under one of the waiver provisions. Waiver adjudications are discretionary, while a jointly-filed petition must be approved if the elements of eligibility are met. Applicants are not limited to one waiver ground. One can apply for multiple waivers on the same form if he or she is independently eligible for each. The immigrant could apply for a second waiver on a separate application (paying the fees again).
Good Faith Marriage—but Terminated—Waiver
The immigrant applicant must show that the marriage was entered into in good faith despite the fact that it has been terminated through divorce or annulment. USCIS will certainly look more critically at the good faith of the marriage where the marriage has been terminated since the grant of conditional residence. In an attempt to avoid a Request for Evidence (RFE), submit as many bona fides of the marriage in the initial submission.
The marriage must be annulled or a divorce decree issued before this waiver can be granted. If the case is filed as a waiver, but is filed before the legal termination of the marriage, USCIS will issue an 87-day RFE for the final divorce decree. If a decree is provided, the case will proceed as a waiver case and be adjudicated accordingly. If the divorce is not finalized and a final divorce decree is not submitted by the deadline, USCIS will issue a denial of the I-751 and a Notice of Termination of Conditional Resident Status. A Notice to Appear (NTA) may than be issued.
Battery or Extreme Cruelty Waiver
The alien immigrant must show that he or she was the victim of battery or extreme cruelty by his or her spouse some time during the course of their marriage. The immigrant must also demonstrate that the marriage was in good faith, but there does not need to be a final divorce decree. Petitions should include substantial documentation and exhibits of both the bona fide nature of the marriage, as well as the battery or abuse suffered by the immigrant spouse.
Termination of Status and Removal Would Result in Extreme Hardship
An immigrant spouse applying under this waiver provision does not have to demonstrate that the marriage is terminated and there is no requirement to show the marriage was entered into in good faith. Hardship for this type of waiver can be to the immigrant herself but you can also use broader arguments about hardship to the family and other individuals as well. If applicable to the hardship, it is recommended to include information on country conditions in the immigrant’s home country. The immigrant must show that hardship is significantly greater than the hardship encountered by others who are removed from the United States.
There is no waiver of the joint filing requirement based solely on the fact that an immigrant spouse entered into the marriage in good faith but he or she is legally separated from the petitioning spouse or divorce proceedings have been initiated. An immigrant cannot file a joint petition without the signature of the petitioning spouse.
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