Filling Out Form I-751 With a Waiver Based on Abuse or Battering

Filing the I-751 petition and gaining USCIS approval of permanent residence can be difficult if your spouse is physically or emotionally abusive, but the law does offer a helpful waiver.

By , Attorney · Temple University Beasley School of Law

If you become a U.S. resident due to your marriage to a U.S. citizen, you will get what's called a "conditional" green card, meaning it will expire in just two years without further action. During the 90 days before 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 U.S. permanent residence.

However, if your U.S. spouse is physically or emotionally abusive, filing the I-751 petition at all could be difficult. Abusive U.S. spouses have been known to delay and refuse to cooperate, using the foreign-born person's immigration status as leverage, a means of control, knowing that the immigrant depends on the citizen's cooperation in obtaining the green card.

The good news is that U.S. law offers a way to deal with this situation, by filing the I-751 solo, with a request for a "waiver," if you can prove the abuse situation. 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.

Safety and Privacy Considerations for Victims

Be sure to consider the privacy of your computer, smartphone, or tablet when seeking help online or over the phone. Some victims might use the same device, network, or phone plan as the abuser, allowing the abuser to see the victim's search or call history or otherwise track their activity. Many smart devices contain cameras or GPS tracking that can be used to locate and monitor a victim's whereabouts. An abuser can even slip a small tracking device in a car, bag, pocket, or other belongings without someone's knowledge. If you're concerned about your privacy or safety, several organizations provide assistance and resources, including National Domestic Violence Hotline and RAINN. You can also check out our Resources for Victims of Crime.

How to File Form I-751 Without a U.S. Spouse

USCIS allows conditional residents to file Form I-751 without the cooperation of their U.S. citizen spouse if they request, and then receive, a waiver of the joint filing requirement based on having been battered or abused by that spouse. (Conditional resident children can also apply if they were battered or abused by a U.S. citizen or conditional resident parent.)

In addition, conditional residents who would be subjected to extreme hardship if returned to their home country, or 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, simultaneously. However, you should contact an experienced immigration attorney before applying for any waiver of the joint filing requirement, 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.

How the "Battered Spouse" Waiver Differs From a VAWA Self Petition

A Form I-751 waiver is available for people who have already attained conditional resident status, and 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 based on marriage to a U.S. citizen or lawful permanent resident by filing USCIS Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant. Men are also eligible to file this petition. More guidance can be found at Green Card Under the Violence Against Women Act (VAWA): Who Is Eligible.

How to Prove Battery and Extreme Cruelty for The I-751 Waiver

What USCIS considers to be battery is straightforward: physical violence committed against someone by their 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 a U.S. citizen spouse intentionally inflicts upon someone in order to dominate, control, or humiliate. The following are examples of behavior that conditional residents have used in the past to prove "extreme cruelty," but every person's case is different and this list is not exhaustive:

  • Threatening to report someone to USCIS or any other government agency, or refusing to jointly file Form I-751 with you.
  • Threatening to divorce, especially if divorce is taboo in the immigrant's culture or religion.
  • Threatening to physically hurt the immigrant or loved ones.
  • Invading your privacy in order to control, including reading or intercepting mail and emails, monitoring phone calls and computer usage, and snooping in personal belongings.
  • Withholding money or food as punishment or to control the immigrant.
  • Not allowing contact with family or friends.
  • Taking away the means of transportation or important documents (for example, a driver's license or passport) in order to keep the immigrant from leaving the home.
  • Intentionally destroying or disposing of personal property.
  • Repeatedly exhibiting uncontrollable anger or screaming.
  • Name calling and making cruel insults (both in public and in private) to humiliate the immigrant.

You will need to provide as many details and specific instances of your spouse's abusive actions and how these actions hurt you and restricted or 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 a waiver.

You will need evidence to prove that you were a victim of domestic violence, so 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 forms of evidence. You can also submit affidavits from other people who can describe instances of abuse and battering that your spouse inflicted upon you.

What to File With USCIS in Seeking Permanent Residence

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 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:

  • There's good news regarding filing fees: Starting April 1, 2024, no fee will be charged to applicants filing with an abuse waiver request. (This is per the latest USCIS fee structure; always see USCIS's I-751 page for the latest fees.)
  • A copy of your permanent resident card (front and back sides).
  • Evidence of battery or extreme cruelty by your U.S. citizen spouse; or evidence of battery or extreme cruelty by your U.S. citizen or conditional resident parents if you are applying as a conditional resident child (see examples above).
  • Evidence that your marriage was genuine, if applying as a conditional spouse. You will need to prove that your relationship was not a fraud or "sham," entered into for purposes of violating immigration law. For a list of documents that conditional residents have used to prove that their marriage was entered into in good faith, see Submitting Documentary Evidence of Good Faith Marriage With Form I-751.

What Happens After You Submit I-751 to USCIS

After filing your I-751, you will be issued a receipt notice on USCIS Form I-797, which will essentially 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 time period specified on this notice.

Make sure to respond to all requests for evidence and appointment notices from USCIS, and let it know if you change your address.

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.

Carefully review the evidence that you prepared for USCIS beforehand: You want to make sure that your answers to the USCIS official's in-person questions match the evidence that you submitted, and that you don't stumble over dates or names.

Getting Legal Help

An experienced immigration attorney can help evaluate your situation, prepare the paperwork and arguments in the form of a cover letter or legal brief, help gather accompanying supporting evidence, and prepare you for any in-person court appearances or interviews before U.S. government officials.

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