Removal of Conditional Residency Where Citizen Spouse Will Not Cooperate: Waiver of Joint Filing Requirement

In situations where the conditional permanent resident (CPR)’s United States citizen (USC) spouse is not willing to cooperate by jointly filing the I-751 Petition to Remove Conditions on Residence, the CPR may seek a waiver of the joint filing requirement.

USC Spouse Will Not Initially File I-751 Jointly: Waiver Procedure

A CPR may seek to waive the joint filing requirement for the I-751 on several basis including the CPR’s USC spouse is deceased; the underlying marriage was terminated (other than through death); the CPR entered into the marriage in good faith but the petitioning spouse or parent battered the CPR spouse or child; or removal from the United States would result in extreme hardship to the CPR.

Please note, that there is no waiver of the joint filing requirement based solely on the fact that a CPR may have entered the marriage in good faith, but he/she is legally separated from, or is going through divorce/annulment procedures with, the petitioning spouse.

In the event that the Immigration Service Office (ISO) encounters a waiver request on the basis of termination of marriage, but the CPR is currently legally separated or in pending divorce proceedings, the ISO will issue a Request for Evidence (RFE) with a response period of 87 days. If the CPR is able to finalize the termination of marriage during this time, he/she may establish waiver eligibility by submitting a copy of his/her final divorce decree or annulment. After receiving the final divorce decree/annulment, the ISO will adjudicate the petition on the merits in accordance with established procedure.

If the CPR does not respond to the RFE, or is unable to obtain proof of termination of the marriage during this time, the ISO will deny the I-751 and issues a Notice of Termination of Conditional Residence Status. Please note, a qualified family law attorney in the CPR’s state can help him/her to determine if there is a special procedure available to accelerate a divorce in order to meet this timeline. If the CPR is still unable to obtain a finalized divorce decree or annulment, the ISO with then refer the case through the proper chain of command for issuance of a Notice to Appear (NTA). In denying the I-751, the ISO notifies the CPR he/she is ineligible for a waiver of the joint filing requirement because his/her divorce is not yet finalized. However, the CPR may establish eligibility for the waiver before an immigration judge in the event the marriage is terminated during the pendency of removal proceedings.

I-751 Filed Jointly and USC Spouse Subsequently Refuses to Cooperate: Waiver Procedure

While the law is not completely clear on the procedure for filing a waiver in this situation, it appears that once the Service Center Immigration Service Office encounters a I-751 petition that has been jointly filed by co-petitioners who are still married but are legally separated and/or in pending divorce or annulment proceedings, the ISO will issue the conditional permanent residence a Request for Evidence with an 87-day response period. In the RFE, the ISO will specifically request the CPR to furnish a copy of the final divorce decree or annulment along with a request stating that he or she would like to have the joint filing petition treated as a waiver petition. This allows the CPR with the opportunity to provide evidence that the proceedings have been finalized and it afford the CPR with the ability to request a waiver without refilling.

If the CPR is able to provide evidence that the divorce/annulment proceedings have been finalized, the ISO will amend the I-751 petition to indicate the CPR is eligible for a waiver of the joint filing requirement based on termination of marriage. The petition is then adjudicating on the merits. If the ISO determines that there is sufficient evidence that the CPR entered into the marriage in good faith, or whether the case warrants relocation to a Field Office for an in-person interview.

If the CPR fails to respond to the RFE, or if the CPR is unable to establish that the marriage has been terminated, the ISO will assess the evidence to determine if the marriage was bona fide and will approve, deny, or relocate the case to a field office for an in-person interview.