By Dev B. Viswanath, Esq. and Michael Phulwani, Esq.
Spouses of US citizens (USCs) and legal permanent residents (LPRs) (commonly referred to as “green card holders”) are entitled to seek permanent residence in most cases.
Persons who obtain permanent resident status based on their marriage to USC or LPR are granted conditional resident status if the marriage is less than two years old when the spouse was admitted on Immigrant visa in the US. During the 90 days preceding the second anniversary of the grant of conditional residence, the conditional resident and the spouse are required to jointly take steps to remove the conditions. For this purpose, Form I-751 Petition to Remove Conditions on Residence has to be filed jointly by both spouses. Conditional residence is terminated if the conditional resident spouse and petitioner fails to file the petition within the 90-day window or fails to appear for an interview.
Once granted removal of condition, the foreign national spouse will be granted a full unrestricted 10 year green card. And that spouse can also use the two years accrued as a conditional resident towards their eligibility for US citizenship. As per the Immigration & Nationality Act rules, a lawful permanent resident can file for citizenship after three years of permanent residence as opposed to the standard five years, if they are using marriage to a US citizen as part of their basis for eligibility for citizenship.
However, if a conditional resident spouse’s marriage ends within the two year period, then a joint filing of the I-751 petition is impossible, and therefore, it is necessary to file for a waiver of the requirement that both spouses sign the petition. This is called a waiver of joint filing. There are four types of waivers available and any one of the below reasons for waiver can be sought by the conditional resident spouse by providing supporting evidence. However, no more than one petition can be kept pending at one time. So if an applicant starts with a petition with a request for waiver of joint filing and decides that they would like to pursue a different ground, then they need to withdraw the initial petition and file the new petition. Not necessarily in that order but usually so.
These are the waiver options:
• Death & Extreme Hardship Waivers – A conditional resident spouse may individually qualify for a joint petition waiver if the other spouse has died, or it can be shown that he or she would suffer extreme hardship if removed from the United States, only if such hardship occurred during the two-year conditional residence period.
• Divorce or Annulment Waiver – A conditional resident spouse can individually qualify for a waiver if it can be shown that the marriage was entered into in good faith, but the marriage was terminated by divorce or annulment prior to the filing of the joint petition. If the spouses are separated but not divorced, the conditional resident spouse cannot file the joint petition until a divorce is obtained. If the conditional resident spouse is in immigration court proceedings, a continuance may be sought to allow the divorce to become final. Separation poses its own dilemma and it would be wise to consult an attorney in this matter.
• Extremely Cruelty Waiver – A conditional resident spouse can individually qualify for a waiver if it can be shown that the marriage was entered into in good faith, but the applicant was battered or subjected to extreme cruelty by the U.S. citizen or LPR spouse during the marriage. Evidence showing battery or extreme cruelty could include police reports documenting physical abuse, restraining orders, medical records, and other forms of psychological or emotional abuse.
However, if the USCIS denies the I-751 petition to remove conditions, the conditional resident spouse would receive a notice to appear in an immigration court for removal proceedings. The conditional resident spouse can renew their I-751 petition before the Immigration Judge to adjudicate the petition and receive their unrestricted green card in removal proceedings if the judge finds their petition credible and the burden is satisfied. If the conditional residence has been terminated by USCIS and a waiver request was filed with USCIS but not adjudicated, the conditional resident spouse placed in removal proceedings can ask the Immigration Judge for a continuation until the waiver is adjudicated.
VAWA stands for ‘The Violence Against Women Act’ and provides relief to certain spouses who have experienced battery or abuse from USC or LPR spouses, including cancellation of removal or suspension of deportation. VAWA permits battered immigrant spouses to seek permanent residence without the assistance of the abusive spouses. In order to file a self-petition, a battered immigrant must have had a valid marriage to a USC or LPR; joint residence in the United States in most cases; evidence of spousal battery or extreme mental cruelty; and good moral character. A VAWA self-petition is filed on USCIS Form I-360. The most compelling part of the application is the battered immigrant’s own personal statement, typically submitted as an affidavit.