Should I File I-751 With a Waiver of Joint Filing or File VAWA I-360?

When one becomes a Lawful Permanent Resident (LPR) of the United States via marriage to a U.S. citizen (if marriage is less than two years old), you receive a ‘Conditional’ Lawful Permanent Resident card (a.k.a. ‘Green Card’) that lasts for two years. ‘Conditional’ as conditioned on the fact that the LPR is still married and is in a bona-fide marital relationship with the petitioning spouse. 90 days before the expiration of your Conditional Lawful Permanent Resident card, your spouse and you need to jointly file Form I-751, Petition to Remove Conditions on Residence with U.S. Citizenship and Immigration Services (USCIS). Upon the approval of your application, your conditional residency will be converted to 10 year LPR one and you will be allowed to live and work in the United States.

Filing the I-751, Petition to Remove Conditions on Residence and gaining USCIS approval can prove to be difficult when your spouse is physically or emotionally abusive and is refusing to cooperate, and is using your immigration status as a way to control you. U.S. Immigration laws provide avenues of relief in these situations. 

How to File Form I-751 Without Your Spouse

Conditional permanent residents are allowed to file Form I-751 without the cooperation of their spouse if they request a waiver of the joint filing requirement. If you have been battered or abused by your U.S.citizen spouse, you can apply for a waiver of joint filing. Also, if your conditional resident children have been abused or battered by either a U.S. citizen or conditional resident parent they too can apply for a waiver. This also applies to those whose spouse has died, to those individuals who have divorced and also to conditional permanent residents who would be subjected to extreme hardship if they return to their home country.

You can apply for any, or all, of the joint filing waivers that you qualify for, however, you will need to provide a good deal of evidence with your I-751 petition. This is why it is extremely important to contact and work with an experienced immigration attorney before applying for waiver.

How the ‘Battered Spouse’ Waiver is Different From the VAWA Self-Petition

Conditional permanent residents who have been ‘Battered’ or abused by their U.S. citizen spouse can self-petition by filing form I-751, Petition to Remove Conditions on Residence requesting a waiver(s) of joint-filing.

The Violence Against Women Act (VAWA) enables domestic violence victims (and their children) to self-petition for a green card by filing Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. VAWA petition is not only available to women, victimized and emotionally abused men can also file in the same manner. VAWA self- petition applies to those individuals who have experienced emotional and or physical abuse by their U.S. citizen or LPR spouse during the course of the marriage and have not yet petitioned or filed to receive a temporary lawful permanent resident card.

How to Prove ‘Battery’ and ‘Extreme Cruelty’ for This Waiver

USCIS considers battery to be physical violence committed against you by your U.S. citizen spouse. This includes punching, slapping, pushing, any other infliction of bodily injury and, most certainly forced sex.

USCIS defines ‘extreme cruelty’ to be nonviolent abuse intentionally inflicted upon you by your spouse to dominate, control, or humiliate you. Here are some of the examples of behavior that conditional residents have used to prove ‘extreme cruelty:’

• Threatening to report you to USCIS and any other government agency, or refusing to jointly file an experienced immigration attorney.
• Threatening to divorce you, especially if divorce is taboo in your culture or religion.
• Threatening to physically hurt you, or your loved ones, especially if done to put you in fear of your spouse.
• Invading your privacy to control you, including reading or intercepting your mail and emails, monitoring your phone calls and computer usage, and snooping in your personal belongings.
• Withholding money, or food from you as punishment, or as a means of control.
• Not allowing you to contact, or associate with, your family or friends.
• Taking away your means of transportation or important documents, such as your driver’s license or passport, to keep you from leaving the home.
• Intentionally destroying or disposing of your personal property.
• Repeatedly exhibiting uncontrollable anger or screaming, even knowing that this behavior would hurt and upset you.
• Name-calling and making cruel insults, both in public and in private, to humiliate you.

Keep in mind that every person’s case is different and that you need to provide as many details and specific instances of your spouse’s abusive actions as possible. Describe in detail how they have hurt you and have tried to control your life. Although it can be painful and emotionally difficult, this is necessary to convince USCIS to grant you a waiver of joint filing requirement. You will also need evidence, such as official reports from police and medical personnel, medical records and photographs of injuries, affidavits from social workers or school officials, so you could provide more than just a personal statement. Affidavits from others who can describe instances of abuse and battering that have been inflicted upon you by your spouse are excellent forms of evidence.

What to File With USCIS

Conditional resident spouses applying for the domestic violence waiver should put an “X” in Part 3 (Basis for Petition) Box 1.e. Conditional resident children applying for this waiver should put an “X” in Box 1.f. After that, the rest of the application should be filled out as instructed.

To file Form I-751 with a waiver based on abuse or battering, you need to submit a completed and signed petition along with the following:

• Filing fee. If you cannot afford this fee, submit Form I-912, Request for Fee Waiver.
• A copy of your permanent resident card (front and back sides).
• Evidence of battery or “extreme cruelty” by your U.S. citizen spouse, or evidence of battery or “extreme cruelty” by your U.S. citizen or conditional resident parents, if you are applying as a conditional resident child.
• Evidence that your marriage was genuine if applying as a conditional spouse. It is important to prove that your marriage was entered into in good-faith and not for the purpose of violating immigration law.

What Happens After You File

After you file your I-751 you will be issued a receipt notice on USCIS Form I-797. This notice will serve as evidence of your LPR status while USCIS is reviewing your case. You may continue to live and work in the United States, as well as travel abroad for the period specified on the notice. It is extremely important to respond to all requests for evidence and appointment notices from USCIS.

After a while, an interview will be scheduled for you at a local USCIS office. There, you will answer questions about your marriage and the specific instances of your spouse’s ‘extreme cruelty’ or battering. It is smart to review the supporting evidence that you prepared for USCIS beforehand, so your answers to the USCIS official’s questions will match.