The Waivers You Can Apply For
The statute provides three grounds for filing a waiver of the joint filing requirement:
- Good Faith Waiver
The marriage was in good faith but has since been terminated.
- Battered Spouse Waiver
The qualifying marriage was entered into in good faith, but while married, the non-citizen spouse (or their child) was abused or subjected to extreme mental cruelty.
- Extreme Hardship Waiver
Extreme hardship would result if the non-citizen were removed.
Choosing Which Waiver To Pursue
Conditional residents may file multiple waivers on the same I-751 petition, provided they are independently eligible for each waiver.
If the conditional resident later becomes eligible for a waiver in a new category, they may have to file a new I-751 paying the new filing fee. The process in this situation looks very similar to the conditional resident who is divorced after filing a joint I-751 and must file a new I-751 in one of the waiver categories with a new fee.
The reason I said they may have to file a new I-751 is because the USCIS guidance on this issue is unclear. In my experience, some local offices will allow a conditional resident to change waiver categories at the time of an interview without filing a new petition or converting a joint petition to a waiver petition.
Suppose a joint interview was scheduled, but the immigrant spouse appears alone. If they are prepared with a new application and evidence to convert it, some offices will allow that conversion to take place at the interview instead of automatically deferring for the failure of the US citizen to appear.
This lack of consistency means that you need an expert on your side who can help you take the steps necessary to find an ideal outcome. What’s more, working with an immigration lawyer is the best way to make sure that your visa strategy is set up for success.
The Timing For Filing A Waiver
A petition for a waiver of the filing requirement may be filed at any time. To obtain the filing receipt that extends their conditional resident status without interruption, many conditional residents will file within the 90-day window before the second anniversary of the grant of conditional residence.
However, the conditional resident is not required to file within that 90-day window if seeking a waiver of the joint filing requirement. The conditional resident may instead file the I-751 waiver before the 90-day window, even if USCIS has already terminated their status.
However, waiting too long to file a waiver can cause problems. A long passage of time may make it more difficult for the conditional resident to produce proof of the bona fides of the marriage. Also, the USCIS may question the validity of the qualifying marriage if the conditional resident was reluctant to come forward and file an I-751 waiver earlier.
What You Need To File A Waiver
A conditional resident’s waiver filing should include form I-751, supporting evidence, and the required filing fee. Although, the extent of supporting documentation will depend on the category of waiver for which the conditional resident is applying.
Additionally, the conditional resident may supplement their filing packet and evidence at any time if they note the receipt number on a cover letter of where that evidence is to go. This way, it can be combined with the petition that’s already been pending.
In all petitions for a waiver of the joint filing requirement, the burden is on the conditional resident to prove that they meet the statutory requirements for the waiver. As such, it’s important to make sure you have everything you need included in your filing before it is submitted to the USCIS.
Typically, all waiver petitions have an in-person interview, though there are instances in which USCIS may waive an interview, such as when:
- No complex facts or issues need an interview to be resolved.
- There is a decision based on the record.
For example, when the record contains enough evidence about the bona fides of the marriage, and that the marriage was not entered into to evade the immigration laws of the United States.
- The USCIS has previously interviewed the I-751 principal petitioner.
For example, if the USCIS did so during the initial green card stage right after the couple married, they may waive an I-751 interview.
- There is no sign of fraud or misrepresentation in the I-751 or other supporting documentation.
Additionally, USCIS service centers can deny an I-751 without an interview if the service center director is satisfied that the marriage was to evade US immigration laws.
What To Expect From The Waiver Interview
Conditional residents should be prepared to answer any number of questions about the course of their relationship with the US citizen spouse and the course of the qualifying marriage. This is especially true if the qualifying marriage did not last long and/or if the documentation proving the bona fides is not robust enough.
Usually, the only archive for later review will be the conditional resident’s submitted documents and the examiner’s notes. However, the USCIS will sometimes tape the interview or conduct a recorded question-and-answer session, then ask the conditional resident to sign the statement.
This is done because it’s hard for an individual to later refute a statement they signed. Thus, it’s strongly encouraged that conditional residents prepare well for their interviews.
With the guidance of a skilled attorney for Immigration Cases In Virginia, you can have the peace of mind that comes with knowing that we’ll make it look easy.