If you become a U.S. resident due to your marriage to a U.S. citizen, you will get a “conditional” green card that expires in just two years. Within 90 days of this expiration date, you and your spouse are expected to jointly file Form I-751, Petition to Remove the Conditions of Residence, with U.S. Citizenship and Immigration Services (USCIS). Doing so will allow you to remain in the United States. After your application is approved, your conditional resident status will be converted to permanent residence.
But filing this petition and gaining this approval can be difficult if your spouse is physically or emotionally abusive; especially if he or she is using your immigration status, and his or her cooperation in obtaining the green card, as a way to control you. The good news is that the law offers a way to deal with this situation. And after your I-751 is approved and you become a permanent resident, your right to live and work in the U.S. cannot be taken away based on you no longer being with your spouse.
USCIS allows conditional residents to file Form I-751 without the cooperation of their spouse if they request, and then receive, a waiver of the joint filing requirement. If you have been battered or abused by your U.S. citizen spouse (or if your conditional resident children were battered or abused by a U.S. citizen or conditional resident parent) you (or they) can apply for a waiver. In addition, conditional residents who would be subjected to extreme hardship if returned to their home country, whose spouse has died, or who have divorced, may apply for a waiver, as detailed at What if Your U.S. Spouse Won’t Sign the Joint Petition (I-751).
You can apply for any or all of the joint filing waivers that you qualify for. However, you should contact an experienced immigration attorney before applying for any waiver, as you will need to provide plenty of evidence with your petition. In this article, we will discuss what is necessary to apply for a waiver based on abuse or battering.
A Form I-751 waiver is available for conditional residents who have been battered or abused by their U.S. citizen spouse. If you have not yet received a temporary green card due to your marriage, even if you have been abused by your U.S. citizen or permanent resident spouse, you may not file Form I-751 at this time. The same is true for abused or battered foreign-born children who have never been conditional residents.
However, the Violence Against Women Act (VAWA) permits domestic violence victims and their children to self-petition for a green card by filing Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant, found on the USCIS I-360 page. Men are also eligible to file this petition. More guidance can be found at Green Card Under the Violence Against Women Act: Who Is Eligible.
What USCIS considers to be battery is straightforward: physical violence committed against you by your spouse. This can include punching, slapping, pushing, any other infliction of bodily injury, and forced sex.
USCIS defines “extreme cruelty” to be nonviolent abuse that your U.S. citizen spouse intentionally inflicted upon you in order to dominate, control, or humiliate you. The following are some examples of behavior that conditional residents have used to prove “extreme cruelty,” but every person’s case is different and this list is not exhaustive:
You will need to provide as many details and specific instances of your spouse’s abusive actions and how these actions hurt you and controlled your life. It can be painful and emotionally difficult to recount instances of this behavior, but it is necessary in order to convince USCIS to grant you a waiver.
You will need evidence to prove that you were a victim of domestic violence, so you should ideally provide more than just a personal statement. Official reports from police and medical personnel, medical records and photographs of injuries, and affidavits from social workers and school officials are excellent evidence. You can also submit affidavits from others who can describe instances of abuse and battering that your spouse inflicted upon you.
For instructions on how to complete Form I-751, see Filling Out USCIS Form I-751, Petition to Remove Conditions on Residence (Line by Line). If you are a conditional resident spouse, put an “X” in Part 3 (Basis for Petition) Box 1.e. to indicate that you are applying for the domestic violence waiver. If you are a conditional resident child applying for this waiver, put an “X” in Box 1.f. Then you can fill out the rest of the application as instructed.
In order to file a Form I-751 with a waiver based on abuse or battering, you must submit your completed and signed petition along with the following:
After you file your I-751, you will be issued a receipt notice on USCIS Form I-797, which will serve as your green card during the time that USCIS is reviewing your case. You may continue to live and work in the United States and travel abroad for the period specified on this notice.
Make sure to respond to all requests for evidence and appointment notices from USCIS. You will eventually be scheduled to go to a local USCIS office for an interview, where you will answer questions about the specific instances of your spouse’s “extreme cruelty” or battering and asked questions about your marriage. Review the evidence that you prepared for USCIS beforehand – you want to make sure that your answers to the USCIS official’s questions match the evidence that you submitted.