Seeking Waiver of Joint Filing Requirement of USCIS From I-751

I-751 petition

 

Introduction

In order for conditional permanent residents who obtained their status through marriage to a U.S. citizen (USC) or marriage to a lawful permanent resident (LPR) prior to the marriage's second anniversary to remove the conditions on his or her residency, the conditional permanent resident must normally file a Form I-751, Petition to Remove Conditions on Residence, along with his or her spouse, provided that the spouse is still living.1,2 The I-751 petition must be jointly filed within 90 days before the two year anniversary of the date that the conditional permanent resident obtained his or her status. However, there are limited exceptions to the I-751 joint-filing requirement. Issued in 2009, a United States Citizenship and Immigration Services memorandum by Donald Neufeld titled I-751 Filed Prior to Termination of Marriage [PDF version],3 4 provides detailed guidance on when someone is eligible for a waiver from the I-751 joint-filing requirement, and how USCIS will adjudicate waiver requests. This article will use the guidance provided by the memorandum to explain the rules regarding I-751 joint-filing waivers.

General Waiver Rules

Conditional permanent residents may affirmatively seek and could be found eligible for a waiver of the joint filing requirement and thus avail him or herself of an opportunity to file USCIS Form I-751 without the participation of the USC or LPR spouse if they can demonstrate they meet one of the following conditions:

The conditional permanent resident demonstrates that his or her removal from the United States would result in extreme hardship
The conditional permanent resident demonstrates that he or she entered into the marriage in good faith but that the marriage was terminated for other reasons than the death of his or her spouse
The conditional permanent resident demonstrates that he or she entered the marriage in good faith but was the victim (or his or her children) of battery by the spouse

Rules for Waiver when Engaged in Divorce or Annulment proceedings or Legally separated, but when the marriage is not yet terminated

A request for obtaining waiver of the joint filing requirement for the I-751 petition will not be granted if the conditional permanent resident entered a marriage in good faith, but is at the time of the application is legally separated from his or her spouse or engaged in divorce proceedings, and is not eligible for a waiver based on extreme hardship or spousal battery. If the conditional permanent resident requests a waiver in these scenarios, he or she will be issued a “Request for Evidence,” (RFE) which will ask for proof that the marriage has been terminated. The conditional permanent resident will have 87 days to respond to the RFE. If a final divorce takes place within that 87-day window, the conditional permanent resident will be able to provide evidence toward a waiver from the joint filing requirement based on divorce and potentially have the waiver request approved. However, if the conditional permanent resident either fails to respond to the RFE within 87 days or fails to provide documentation that a divorce was finalized, he or she will be issued a Notice of Termination of Conditional Resident Status, and a Notice to Appear before an immigration judge. Conditional permanent residents will be deemed to have failed to establish eligibility for the waiver of the joint filing requirement if the divorce is not finalized within the 87-day response period. However, in those situations, they may still be able to establish before an immigration judge eligibility for the waiver from the joint filing requirement if the divorce is finalized during their removal proceedings.

Rules for filing I-751 without a waiver

Conditional permanent residents who fail to meet any of the criteria for a waiver from the I-751 joint filing requirement have the option of attempting to remove the conditions on his or her residence by jointly filing the I-751 form with his or her spouse. In this scenario, the conditional permanent resident and his or her spouse must satisfy the following conditions for the I-751 petition to be approved:

The conditional permanent resident and spouse both appear for an interview
They demonstrate that the marriage was legal when it took place
They demonstrate that the marriage has not been terminated
They demonstrate that the marriage was not entered into for the sole purpose of evading U.S. Immigration laws [see article]5
They demonstrate that they paid no fees besides attorney fees for the filing of I-130 or I-129F forms

Even if the conditional permanent resident and his or her spouse are separated or in divorce or annulment proceedings, it is still possible for them to jointly file an I-751 petition and meet the conditions for approval. Divorce or annulment proceedings or legal separation are not grounds in and of themselves for denial of the I-751 petition; however, they may be used as evidence that the marriage was entered into for the purpose circumventing immigration laws. It will be incumbent upon the petitioners to prove to the satisfaction of the Immigration Service Officer that the marriage was not entered into for that purpose.

If the Immigration Service Officer determines that the marriage is not bona fide and that the I-751 petition should be denied, he or she will send the case to a Field Office Immigration Service Official who will conduct an interview with the petitioner and his or her spouse. On the basis of that interview, the Field Office Immigration Service Official will determine whether the I-751 petition should be approved or rejected.

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  1. INA § 216(c)(1)(A)
  2. 8 C.F.R. § 216.4(a)(1)
  3. Memo, Neufeld, Acting Assoc. Dir. USCIS, “I-751 Filed Prior to Termination of Marriage,” (Apr 3, 2009)
  4. Follow link to download a copy of the memorandum from the USCIS website.
  5. Follow this link for our detailed article on sham marriages with information on demonstrating that a marriage was not entered into in order to evade or circumvent immigration laws.