If you became a conditional resident of the U.S. (a two-year green card holder) based on your marriage to a U.S. citizen or permanent resident, then, in order to remove the conditions on your residence, you would normally need to file Form I-751 jointly with your spouse during the 90-day period preceding the expiration of your status.
However, these normal filing requirements do not apply to you (they can be “waived”) if, during the marriage, your spouse physically or emotionally abused you or your child. In such a case, you will be allowed to file Form I-751 alone without needing to involve your abusive spouse in the process, and U.S. Citizenship and Immigration Services (USCIS, the immigration authority) will accept the petition at any time prior to your deportation (“removal”) from the U.S., whether your marriage has ended or not. (You will still be required to show that the qualifying marriage was entered into in good faith.)
This article takes a closer look at the factors you might consider in timing your I-751 filing with an abuse waiver request.
If your spouse abused you or your child at any time during your marriage but before the 90-day period preceding your conditional resident card’s expiration date, then you have the option to file Form I-751 “early.” (By contrast, if he or she had abused you when you were dating but stopped as soon as you became married, then you would not be eligible for the abuse waiver.)
Before any filing, one should always take the time to build and gather supporting evidence. In your particular case, you should write a detailed account of your abuse and, if you have not already done so but believe you can proceed safely, get help – from the police, the courts, medical personnel, licensed therapists, social workers, school officials, or clerics if you are religious. These institutions and figures will provide you not only with the care and protection that you need but also with credible official records to document your case.
Evidence that you sought shelter for domestic violence victims could also make your claim more plausible. However, it is understood that victims of domestic abuse are not always in a position to take such concrete self-protective steps. So, if you are still living with your abuser, USCIS will not necessarily hold this against you. Likewise, if you are still married to your abuser, this should not suffice to deny your abuse waiver request. Generally, these difficult issues should simply not control the timing of your I-751 case.
If you chose instead to obtain a divorce (and even to marry someone else), rest assured that this will not automatically hurt your case – though it could cause USCIS to try to terminate your status early. It also makes you eligible for a separate divorce waiver – an alternative process that will require only showing that your marriage was entered into in good faith and that will spare you the distress of revisiting and exposing the painful memories of your abuse. But, though this option might on the surface seem preferable to the abuse waiver process, such a general comparison would be misleading. In fact, obtaining an abuse waiver to remove the conditions on your residence would carry its own benefit by accelerating your eligibility for naturalization.
Conditional residents who fail to file their first I-751 before the expiration of their conditional resident card automatically lose their legal status. They become removable from the U.S., no matter the reason for their failure to file. This may seem especially cruel to those whose efforts to file were hindered by interference from their abusive spouse (in cases of “forceful detention,” for example). However, such persons, as well as others who qualify for an abuse waiver, may still have the opportunity to file.
If you have not already been removed from the U.S., then USCIS will accept your late petition – no matter how long ago you lost your status or suffered abuse. You will not need to explain why your petition is late (though doing so might be wise if such explanation lends support to your abuse claim). Moreover, your late filing, while pending, will entitle you to normal employment and travel benefits. And, once your petition has been approved, any unlawful presence you accumulated due to losing legal status will be forgiven.
USCIS also accepts substitute I-751 petitions – meaning that, if you have already filed an I-751 but failed to request an abuse waiver, you can still correct this by filing a new I-751. Nonetheless, immigration officers generally have considerable discretion in adjudicating waiver applications, and they could see with suspicion your failure to bring up the abuse claim earlier. So, if you believe that your initial I-751 filing was incomplete or otherwise inappropriate, you should consider speaking with an immigration attorney before proceeding any further.