What If Your U.S. Spouse Won't Sign the Joint Petition (I-751)?
Waivers are available for conditional residents seeking permanent residence without their spouse's cooperation.
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If you received U.S. conditional residence based on marriage to a U.S. citizen, then you probably know that your green card, and your status in the U.S., will expire in two years unless you take steps to become a permanent resident. The normal next step is, within 90 days of the two-year anniversary of your receipt of U.S. residence, to file a joint petition with your U.S. husband or wife on USCIS Form I-751. Once that is approved by U.S. Citizenship and Immigration Services (USCIS), you become a permanent resident.
However, a lot of things can happen to a marriage in two years. People can get divorced or separated or the petitioning spouse might die. In some cases, the immigrant becomes the victim of domestic violence at the hands of a spouse who will no longer help with the immigration paperwork.
Any of these circumstances will make it impossible to submit the Petition to Remove Conditions of Residence in its standard and simplest form, as a joint petition signed by both spouses. You should not give up at this point, however.
Form I-751 allows you to check boxes showing that despite your good faith marriage you are now divorced, widowed, the victim of being battered or extreme cruelty by your U.S. spouse, or would suffer extreme hardship if you were denied permanent residency. If you check any of these boxes, you will still submit the form, and may qualify for permanent residence, but you will not have your spouse’s signature.
Extreme hardship. This is the most general ground for a waiver -- and you technically don’t even need to prove a good faith marriage to qualify for it -- but it’s also considered the hardest to qualify for. You must show that political or economic changes have arisen in your country since the time you became a conditional resident that would cause you extreme hardship if you were to return. (See I.N.A. § 214(c)(4)(a); 8 U.S.C. § 1186a(c)(4)(a).) For example, if you have recently become an outspoken public critic of a repressive government’s policies and might be persecuted upon your return, you would have a good hardship case.
Divorce. This ground is more clearcut. Note, however, that the divorce must actually be finalized before you can file for this waiver. And, depending on where you live, the courts may take many months to grant you a divorce. This means you may want to file the divorce papers yourself in order to get the process going, instead of waiting for your U.S. spouse to do so. On the other hand, the longer you stay married, the better your chances of showing that the marriage was bona fide in the first place. If worst comes to worst, you could either file your waiver request without the divorce decree (in order to preserve your status) but with a promise to send it later; or file your waiver request late, arguing that the upheaval in your life caused by your marital troubles was good cause for your lateness. It would be wise to get a lawyer's help with this.
Battery or extreme cruelty. You might qualify for this section of the waiver if you have been the victim of “any act or threatened act of violence [by your U.S. citizen spouse], including any forceful detention, which results in physical or mental injury. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution shall be considered acts of violence.” (See 8 C.F.R. § 216.5(e)(3)(i).) You are not required to be divorced or even separated from your spouse.
The main challenge to getting a waiver based on battery or extreme cruelty will be documenting the good faith marriage (particularly if you had to quickly leave the home where you and your spouse lived), as well as documenting the abuse. You will need to gather documents like police and medical reports, photos, psychological evaluations, witness statements, letters from shelters, and so on. Current law prohibits USCIS from advising the abusive spouse about the application (though Congress has made noises about changing this, so be cautious).
No matter which category you marked, you will need substantial documentation of your eligibility for approval. That will include both documents showing that your marriage was entered into in good faith (similar to what you supplied when you got your U.S. residence) and documents proving the divorce (a divorce decree), spouse’s death (a death decree), abuse, or hardship. Consult a lawyer, a local nonprofit that serves immigrants, or a battered women’s shelter for further help.