How to file a form I-751 waiver petition
The i-751 self-petition
Green card removal of conditions can be tricky as many marriages break down or end in divorce. If you are a conditional permanent resident, it is important that you contact a green card attorney at the first signs of conflict. Do not wait until you have a complete marriage meltdown before seeking professional help. The i751 is one of those immigrant forms you must file to maintain your permanent resident status. This is not an option. Avoid having your form i-751 or i 751 waiver denied because you did not seek legal counsel to protect your permanent resident status.
Section 216(c) of the Immigration and Nationality Act (INA) requires a conditional permanent resident who obtained that status (a 2 year green card) through a marriage of less than two years to file a joint petition to remove conditions his or her on green card. The petition is made using USCIS form I-751.
The joint petition
The joint petition must state that the following is true about the qualifying marriage and the immigration petitioning process:
1. The marriage was lawful at the place where it occurred;
2. The marriage is not annulled or terminated other than by death;
3. The marriage was not for obtaining permanent resident status for the alien, and
4. No fee or other consideration was given (other than attorney’s fees) for a petition under section 204(a) or subsection (d) or (p) of section 214 of the Immigration and Nationality Act.
The purpose of the petition for green card removal of conditions is to prove that the marriage was proper and not for bypassing immigration laws. A failure to file a timely joint petition will result in termination of permanent resident status and the start of deportation proceedings. This joint petition must be filed within the 90-day period before the 2 year anniversary of conditional permanent resident status. A late filing may be excused with a reasonable explanation of good cause and extenuating circumstance such as death of a family member, hospitalization, complications due to childbirth or other circumstances beyond one’s control. See INA § 216(d)(2)(B). If the service center director is satisfied that extenuating circumstances exists and if he approves the petition, any notice to appear that is issued before jurisdiction vests in the immigration court must be cancelled under section 239.2 of Title 8, Code of Federal Regulations (8 CFR). See, 8 CFR § 216(a)(6).
In some circumstances a joint petition is not possible and removal of conditions i-751 waiver petition is permitted under section 216.5 of Title 8, Code of Federal Regulations (8 CFR). A waiver request may be filed at any time before a final order of removal or deportation. It is used where the conditional resident was not at fault in failing to meet the joint filing requirements, and he is able to establish one or more of the following requirements: (i) Deportation or removal from the United States would result in extreme hardship; (ii) The marriage upon which his or her status was based was entered into in good faith by the conditional resident alien, but the marriage was terminated other than by death, and the conditional resident was not at fault in failing to file a timely petition; or (iii) The qualifying marriage was entered into in good faith by the conditional resident but during the marriage the alien spouse or child was battered by or subjected to extreme cruelty committed by the citizen or permanent resident spouse or parent. 8 CFR 216.5 (a)(1)-(2). A waiver petition may also be filed were the marriage is terminated by death. A waiver petition that is filed after a final order of deportation will be denied based upon the final order. The reason for the denial is because the alien’s conditional resident status has been terminated by the final order and the alien no longer as the status for which he is seeking a removal of condition.
Filing limitations on waiver requests
Waiver request petitions have no specific filing period as do jointly filed petitions which must be filed within the 90-day period immediately preceding the second anniversary of the CPR’s admission or adjustment. They may be filed at any time between the grant of CPR status and a final order of removal or deportation. There is also no regulatory limitation on how many times a CPR may file a petition whether they are joint petitions or a waiver request. A denial of a petition does not prevent the alien and petitioning spouse from filing a new one.
Joint petitions filed after the denial of a joint petition will be evaluated on the same basis as the denied petition unless the subsequent petitions contain additional or different evidence that overcomes the previous basis for denial. However a waiver request made after the denial of a joint petition will be evaluated on a different basis to the previous joint petition. It is the policy of the United States Citizenship and Immigration Services that successive or multiple filing of waiver petitions are more likely to exhibit fraud indicators and these petitions are vetted for possible fraud. If fraud is suspected, the service center director may refer the application to the appropriate local office and require that the alien appear for an interview.
Adjudication of I 751 waiver petitions
Section 216.5(e) of Title 8, Code of Federal Regulations (8 CFR) sets out the evidence that the director may consider in adjudicating a waiver request.
Extreme Hardship – only factors (financial, medical, mental etc.) that arose after the alien’s admission as a conditional permanent resident are considered. The CPR must prove hardship beyond that would be likely from an alien’s removal from the United States.
Termination of Good faith marriage – the commitment by both parties to the marriage as evidenced by the degree to which the financial assets and liabilities of the parties were combined, the length of time during which the parties cohabited after the marriage and after the alien obtained permanent residence, children born to the marriage and other pertinent evidence.
Physical or Mental Abuse (of alien spouse or alien spouse’s child) – If the waiver is claimed on the basis that the alien spouse’s child was battered or subject to extreme cruelty by the petitioning spouse, the immigration status of the child is irrelevant. The conditional resident may still apply for a waiver under this ground regardless of her marital status. The conditional resident may apply for the waiver whether the CPR is still married and living with the abuser, separated or divorced. Threats of physical violence are sufficient. For physical violence the USCIS will consider expert testimony in the form of reports and affidavits from police, judges, medical personnel, school officials and social service agency personnel. For extreme mental cruelty, the USCIS will consider expert testimony from a licensed psychologist, therapist or social worker. The report submitted with the application should contain the full name and the licensing or certifying authority for the expert. One practice insight from my experience as a Las Vegas Us immigration attorney is that it is important for you to have an on-going relationship with a psychologist or therapist while you are experiencing abuse. Testimony from unlicensed and untrained persons alone without expert testimony will not suffice to prove extreme mental cruelty though it may be used to corroborate the abuse.
For help with a waiver petition consult an attorney
Before you file an I-751 waiver petition consult an immigration lawyer. In many cases you can get your waiver approved without interview. If the USCIS requests that you attend an interview you should have attorney representation at the interview. If you are a conditional resident and have concerns about removal of conditions on a green card obtained through marriage, give Goodin Law a call to schedule a consultation with our experienced Las Vegas green card attorney. We have experience with challenging removal of conditions cases.