Marriage Based Green Card Removal of Conditions – Waiver of the Joint Filing Requirement

When permanent residence status is based on marriage to a U.S. citizen, some foreign nationals receive a conditional permanent resident status valid for only two years. The permanent residence status is conditional if it is based on a marriage that was less than 2 years old on the day permanent residence was granted.

To receive a permanent green card, USCIS requires later proof that that the marriage was entered in good faith and not to evade the immigration laws. Form I-751 “Petition to Remove Conditions on Residence” must be filed by both spouses. In most cases, the joint filing requirement is not a problem. However, even bona fide marriages may experience relationship challenges, divorce, separation, or spousal abuse within the first 2 years of marriage. Consequently, the U.S. citizen spouse may be unwilling or unable to jointly file I-751 to remove conditions and receive a permanent green card. In those cases, USCIS allows the beneficiary spouse to apply for a waiver of the joint filing requirement.

Waiver Requirements – Bona Fide Marriage

USCIS allows the beneficiary spouse to request the Waiver in one of the following cases:

• Beneficiary spouse entered into the marriage in good faith, and not to evade immigration laws, but the marriage ended by annulment or divorce, and the beneficiary spouse was not at fault in failing to file a timely petition

• Beneficiary spouse entered into the marriage in good faith, and not to evade immigration laws, but during the marriage the beneficiary spouse or his or her child were battered by, or subjected to extreme cruelty committed by the U.S. citizen or permanent resident spouse, and the Beneficiary spouse was not at fault in failing to file a joint petition

• Deportation or removal would result in extreme hardship

The key requirement is that the marriage was entered in good faith, not to obtain an immigration benefit. While divorce and separation are red flags, the government understands that some marriages fail even with the best intentions for a lifelong commitment at the time of inception.

Difficulties Proving a Bona Fide Marriage

Many I-751 cases are not problematic. If the beneficiary spouse can demonstrate the couple’s history of shared life, the case usually goes smoothly. Such proof can include, but is not limited to, joint residence, merged finances, and extended family ties. However, cases involving short-lived relationship and lacking proof of unified lives can be quite challenging. Assistance of an experienced attorney is essential to demonstrate proof of cultural and family dynamics that may account for the lack of standard evidence.

• Couples Not Residing Together

USCIS expects proof of shared residence because most married couples live together. However, in rare cases, USCIS will approve the I-751 waiver, even if the couple has never actually lived together. Those cases usually involve spouses who keep separate residences due to employment and higher education commitments. Because the expectation of shared residence is so strong, it is crucial to demonstrate that the couple always planned to cohabitate as soon as circumstances allowed. It is extremely hard to prove that a bona fide marriage existed without cohabitation. However, we work with our clients to present USCIS with specific reasons that may make it possible to overcome the lack of common residence weakness.

• Diverse Cultural Norms

Some foreign spouses come from cultures where arranged marriages are prevalent. Many arranged-marriage couples ultimately find love and satisfaction in their relationship. Unfortunately, some arranged marriages do not work out, even with the best intentions for a life-long bond. In those instances, it is crucial to show that the marriage was entered in good faith according to the couple’s customs and cultural norms, not to obtain immigration benefits.

Conclusion

The government will look whether a marriage was entered into sincerely. If the relationship fails the test of time and standard evidence of a bona fide relationship is lacking, the application has to prove that the marriage was entered for reasons other than to gain immigration benefits.