What Can Conditional Resident Do If 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.

By , J.D. · University of Washington School of Law

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 receipt of U.S. residence, to file a joint petition with the 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, including:

  • the couple gets divorced or separated
  • the petitioning U.S. spouse dies, or
  • the immigrant becomes the victim of domestic violence at the hands of a U.S. 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. This article will describe various waivers available, based on:

  • extreme hardship
  • being divorced
  • being widowed, or
  • having suffered abuse or battery at the hands of the U.S. spouse.

Extreme Hardship Waiver of I-751 Joint Filing Requirement

Extreme hardship were the immigrant to be returned to their home country is the most general ground for a waiver. You technically don't even need to prove a good faith marriage to qualify for it (though if there's evidence of marriage fraud, you'll have trouble convincing USCIS you deserve help).

However, 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 go back. (See I.N.A. § 216(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 Waiver of I-751 Joint Filing Requirement

This ground is more clear-cut. (See 8 C.F.R. § 216.5(e)(3)(ii).) Note, however, that the divorce must actually be finalized before you can file for this waiver. And, depending on where you live, the courts could take many months to grant you a divorce. (See What You Need to Know Before Getting a Divorce.)

This means you (the immigrant) might 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 worse 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 to USCIS 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.

Widowhood Waiver of I-751 Joint Filing Requirement

If the U.S. spouse died before filing the I-751, then requesting a waiver on this basis is fairly straightforward. You'll need a copy of the death certificate, plus evidence that shows that your marriage was "bona fide" (real) in the first place.

If you and your spouse filed the I-751 jointly before your spouse died, but it hasn't yet been approved, USCIS cannot do so without you first asking that it convert your I-751 into one with a waiver request. Get in touch with USCIS's Contact Center for assistance.

Battery or Extreme Cruelty Waiver of I-751 Joint Filing Requirement

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. However, be sure to consider the privacy of your computer, smartphone, or tablet. Victims who use the same device, network, or phone plan as the abuser run the risk that the abuser will see their search or call history or otherwise track their activity. Also, many smart devices contain cameras or GPS tracking that can be used to locate and monitor someone's whereabouts. An abuser can even slip a small tracking device into a car, bag, pocket, or other belongings. In fact, many cars now have apps that allow anyone listed as an owner or co-owner to track the car's location remotely.

How to Ask for One of The Above I-751 Waivers

Form I-751 allows you to choose and check a box showing that despite your good faith marriage you are now either 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. In fact, you can check more than one box, if appropriate.

If you check any of these boxes, you can still submit the Form I-751, and may qualify for U.S. permanent residence, even without your spouse's signature or participation.

Getting Legal Help

No matter which category of waiver you marked on Form I-751, 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.

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