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If your U.S. citizen/resident spouse will not cooperate with your I-751 petition, you need to seek a waiver of the joint-filing requirement. There are three waiver possible strategies available. You are allowed to pursue one or more than of these strategies simultaneously.
1. Marriage termination + good-faith marriage.
An I-751 waiver may be approved on the basis that the marriage was entered into in good faith, but that the marriage ended. The marriage may be ended either by dissolution or by the death of the U.S. spouse.
You must first prove that you entered into the marriage in good faith. The intentions of the U.S. spouse are irrelevant, meaning it does not matter whether or not that person had good faith. Proving “good faith” is done with the same manner of documentation that was used in the initial marriage-based petition. Appropriate documentation can include:
- Proof of joint finances (bank accounts, credit cards);
- Birth certificates of children born to the marriage;
- Cohabitation as shown by lease agreements, joint billing on utilities, car insurance, etc.;
- Jointly filed tax returns;
- Photos of the couple together; and
- Sworn statements by friends and families.
As a practice matter, it can sometimes be quite challenging to gather this documentation when a couple is in the process of separating. Often financial documents will be primarily controlled by the U.S. spouse, who may or may not have the sophistication to gather duplicates from the banking institution, etc.
It is irrelevant which party filed for divorce. Yet as foreign spouse, you are required to prove that you were not “at fault” for failing to file a joint I-751 petition. This at-fault concept is not the same as state law provisions governing at-fault divorces. That mean, even if a you are determined to be at fault in a divorce, that finding does not determine the outcome of the I-751 petition. Instead, the issue of determining fault is left to the immigration adjudicator.
What if a divorce has not yet been finalized by the deadline for filing the I-751 petition? There is no waiver available based on a couple’s physical or legal separation, as distinct from divorce. Under policy guidance from USCIS, the foreign national has two options.
First, if the U.S. spouse is a cooperative, the couple may file a joint petition. A joint petition is approvable even if the couple is not residing together, so long the marriage was entered into in good faith. The U.S. spouse will be required to attend the petition interview, and the fact the couple is not residing together will raise scrutiny of the reasons behind the marriage. Still, neither legal separation nor the initiation of divorce proceedings is by itself a basis for denying a jointly-filed petition.
It is far more common, of course, for the U.S. spouse to refuse cooperation with a jointly-filed petition. In this scenario the foreign spouse is permitted to file her I-751 petition without the final divorce decree. The immigration service then issues a Request for Evidence, giving her 87 additional days to provide the decree. If she is unable to provide the decree within that timeframe then she is may request additional time to respond, but the immigration service has discretion to grant or deny that request. A foreign national will typically be able to pursue this strategy only if the couple is finalizing an uncontested divorce, or if they are close to resolution in a contested matter at the time the I-751 is filed.
Example: Florian immigrated from Spain to join her U.S. citizen wife. At the end of the two-year conditional residency period the couple jointly files the I-751 petition, although they had been experiencing relationship difficulties. After the I-751 is filed, Florian’s wife commences dissolution proceedings. Shortly thereafter the couple is issued an interview notice for the I-751 petition. Florian’s spouse refuses to cooperate and will not attend the interview. Florian attends the interview by herself, and explains the pending dissolution to the officer. There are no indications the marriage was entered into in bad faith, only that the relationship failed. The officer allows Florian to amend her I-751 petition, converting it into a waiver petition based on termination of marriage. The officer issues Florian a request for evidence, allowing her 87 days to provide the finalized divorce decree. The deadline will elapse without a finalized decree due to court scheduling that pushes out the date for the final hearing. Florian mails a letter to the local immigration office, explaining that she needs an additional 30 days to provide the decree. She obtains the decree and mails it to the local officer. Her petition is approvable.
2. Abuse by U.S. spouse.
If you were abused by your U.S. spouse this option may be available to you. The abuse does not need to be physical in nature. Even purely psychological abuse can serve as the basis for a successful I-751 petition. In such cases we would typically recommend submit an evaluation by a psychological expert.
Evidence submitted in support of an abuse waiver may include:
- Restraining or protection order;
- Police reports;
- 911 transcripts;
- Medical records;
- Mental health records;
- Texts or other written messages from the U.S. spouse; and
- Declarations by the foreign national spouse or third parties.
An abuse waiver may be approved with no supporting documentation beyond a declaration by the foreign national spouse. Moreover, the level of abuse need not be extreme.
Example: Myke is a 35-year-old man from the Democratic Republic of the Congo. He married a slightly older U.S. citizen. After bringing him to the U.S., Myke’s wife became emotionally detached from him. She would accuse Myke of being lazy and withhold intimate contact. Sometimes at night she should yell at Myke and tell him to sleep on the couch. No police reports or allegations of criminal abuse were ever filed. Nearing the 2-year date of his residency, the couple has separated but not filed for divorce. Myke files an I-751 waiver petition, based on abuse. He provides a first-person declaration, and a statement by a psychologist who characterizes Myke’s subjective distress at the perceived abuse he suffered. Myke’s I-751 petition is approvable.
3. Extreme hardship.
The final way to seek approval of an I-751 waiver is by showing the hardship the foreign national would experience if forced to return to her home country. Note that this waiver strategy does not require proof that the marriage was entered into in good faith.
The immigration statute and regulations do not describe a legal standard for “extreme hardship” in I-751 waiver cases. But the following factors are generally considered in assessing a hardship:
- Family ties to the United States;
- Community ties in the United States, such as volunteerism and participation in a religious community;
- Ties to the home country (i.e., how easy will it be to relocate);
- Conditions of the home country;
- Significant health conditions;
- Economic/financial hardship; and
- Psychological hardship.
Example: Thuy comes from a small town in Vietnam. With a high school education, her only past employment involved working for subsistence wages at her parent’s store. She immigrated to the U.S. to marry a U.S. citizen of Vietnamese origin. The marriage has fallen apart, and the couple has separated, but there are no indications of any sort of abuse. In her time in the U.S., Thuy has learned English quickly and now has a managerial position at a small restaurant. She sends a significant portion of her paycheck as remittances to her family in Vietnam, where her prospects of gainful employment would be dim. Thuy files an I-751 waiver petition, arguing that it would be a hardship if she was forced to return to Vietnam. She includes information about the economic conditions to which she would return and provides a psychological evaluation that describes the devastation she would experience if no longer able to provide financial support to her family. Thuy’s I-751 is approvable.
Consequences of a denied I-751 petition
If the I-751 petition is denied the foreign national can be placed into removal proceedings. As is always the case with removal proceedings, the mere fact that proceedings are initiated does not mean with certainty that the foreign national will be deported. She may be eligible for relief from removal, including having her case terminated on discretionary grounds.