Form I-751 Waiver of Joint Filing Requirement

Form I-751 Waiver of Joint Filing Requirement

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Form I-751, officially known as the “Petition to Remove Conditions on Residence,” is a form used by conditional permanent residents of the United States to request the removal of the conditions on their lawful permanent resident status. 

When someone is granted conditional permanent resident status, they typically receive a two-year green card. 

To maintain their permanent resident status beyond these two years, they must jointly file Form I-751 with their sponsor spouse or apply for a waiver of joint filing requirement.

The conditional resident can file Form I-751 without their sponsor spouse (“waiver of the joint filing”) based on any of the 3 grounds:

  1. Marriage Termination. The marriage was entered into in good faith but the marriage has been terminated by divorce or annulment.
  2. Abuse or Extreme Cruelty. The marriage was entered into in good faith but the conditional resident has been battered or subjected to extreme cruelty by the U.S. citizen or permanent resident spouse; or
  3. Extreme Hardship. Termination of permanent residency and deportation will result in extreme hardship.
  4. Death of the Spouse. If filing Form I-751 due to the death of the spouse, the conditional resident should submit a copy of the U.S. citizen or permanent resident spouse’s death certificate, along with the evidence of the bona fide marriage.

The conditional resident may apply for a waiver based on one or more of the grounds.

To prove good faith marriage, the conditional resident can submit to USCIS the following evidence:

  • Proof of joint financial assets and liabilities (for example, joint bank account statements, joint credit card statements, joint savings accounts, etc.)
  • The length of time the couple resided together (for example, joint lease agreements, joint utility bills, affidavits from landlords, family and friends who have personal knowledge of the cohabitation)
  • Birth certificates of children born into marriage
  • Joint health and life insurance policies
  • Joint tax returns
  • Evidence that the couple has jointly purchased land or personal property (such as a car or appliances)
  • Photographs taken together at family and social events
  • Evidence of vacationing or traveling together

Marriage Termination Waiver (Divorce/Annulment)

The joint filing requirement can be waived by USCIS if the conditional resident proves that the marriage was entered into in good faith and has ended in either divorce or annulment. This waiver is available for all conditional residents regardless of who was at fault for the divorce/annulment or who initiated the proceedings.

What to Do if Divorce/Annulment Isn’t Finalized and Conditional Green Card Will Expire Soon? 

USCIS allows conditional residents to submit a waiver of joint I-751 filing if the couple separated and divorce or annulment proceeding has been filed but not finalized. In such cases, USCIS will issue a Request for Evidence (RFE) giving the conditional resident 87 days to submit a divorce or annulment decree. If the divorce/annulment is finalized within that period, USCIS will review the petition. If the divorce/annulment isn’t finalized within that period, USCIS will deny the petition and might place the conditional resident into deportation (removal proceedings).

The conditional residents who have filed for divorce or annulment and whose conditional green cards will expire soon, have two options:

  1. If the divorce/annulment will not be finalized within 87 days of receiving an RFE, apply under one of the other grounds (battered spouse or extreme hardship, if applicable) and amend the petition once the divorce/annulment is finalized, or
  2. File I-751 petition after the divorce or annulment is finalized.

Battered Spouse Waiver 

The conditional resident may file Form I-751 without a sponsor spouse based on being a victim of battery or other forms of abuse. This waiver is also available when the conditional resident’s child was subject to abuse by the U.S. citizen or permanent resident parent. The battered spouse waiver is available to the following conditional residents regardless of their current marital status:

  • Married and living with the abusive spouse
  • Separated
  • Divorced
  • Or being in the process of seeking divorce

To be eligible for the battered spouse waiver, the conditional resident must not have departed the US after their conditional resident status has terminated.

The following acts can constitute battery or extreme cruelty:

  • Acts of violence
  • Threats of violence
  • Forceful detention
  • Physical injuries
  • Mental injuries 
  • Psychological abuse
  • Sexual abuse
  • Sexual exploitation
  • Rape, molestation
  • Forced prostitution

The following evidence can be submitted in support of battered spouse I-751 waiver application:

  • Detailed personal declaration from the conditional resident spouse explaining the abuse suffered 
  • Copies of temporary and final protective orders
  • Shelter records and other evidence that the victim of abuse sought shelter or protection
  • Counseling records
  • Social service records
  • Medical records showing abuse
  • Photographs of injuries
  • Photographs of damaged property (if applicable)
  • Police reports
  • Criminal court records
  • Affidavits from the witnesses of the abuse

Any information and documents submitted by a battered spouse will kept confidential and USCIS can release this information only to the applicant, their attorney, USCIS officer, or any state or federal law enforcement agencies.

Extreme Hardship Waiver

The conditional resident can file for the extreme hardship waiver based on hardship to:

  • Themselves
  • Children
  • New spouse

USCIS will only take into consideration factors that occur after the conditional resident entered the U.S. The following factors can be taken into consideration:

  • Medical issues that developed after the conditional resident entered the US
  • Adverse political, social or economic conditions that have developed recently in conditional resident’s home country
  • Conditional resident’s age
  • Conditional resident’s ties to family in the US and abroad
  • Length of residence in the US
  • Conditional resident’s occupation and work skills
  • Conditional resident’s immigration history
  • Conditional resident’s position in the community
  • Whether the conditional resident is of special assistance to the US or the community
  • Whether the conditional resident can adjust status by other means

What Happens If Form I-751 is Filed Late?

If a conditional resident can show good cause for filing the Form I-751 petition late, USCIS will accept the late petition. Examples of good cause include:

  • Hospitalization
  • Long-term illness
  • Death of a family member
  • Recent birth of a child
  • Having a family member on active duty with the US military

Good cause supporting documents must be accompanied by a written statement. If a conditional resident fails to prove good cause for filing Form I-751 late, USCIS will dent the petition. 

When a conditional resident applies for a waiver, usually the Form I-751 petition must be filed within the 90-day period before the expiration date of a conditional green card. Some conditional residents may file the petition earlier or later than the regular deadline. For example, if divorce becomes final or conditional resident experiences battery or extreme cruelty, USCIS will review the waiver application early. Also, a conditional resident might file a waiver application after the 90-day period if the US citizen or permanent resident spouse initially cooperated with the joint filing but later refused to continue the process. In such cases, conditional residents can file a waiver application after the deadline. If USCIS denies a jointly filed Form I-751, conditional residents can resubmit Form I-751 with a waiver application.

Related Links:

Form I-751 Instructions

How to Fill Out Form I-751 – Step-By-Step Instructions

Form I-751 Checklist of Supporting Documents (Remove Conditions on Residence)

Termination of Conditional Status