In the last post, we discussed how to adjust status to that of a legal permanent resident based on your marriage to a U.S. citizen. If you adjusted your status based on a marriage to a U.S. citizen before your two-year anniversary, then your green card came with conditions. Those conditions mean that your card expires in two years after its issuance and that you have to remove the conditions within 90 days of that expiration date by filing Form I-751 jointly with your U.S. citizen spouse in order to receive the unconditional permanent resident card.
But just like many things in life marriages can be fragile and short-lived. So what happens if your marriage does not work out, and you and your spouse divorce before your conditional green card expires? Can you still remove the conditions and get the 10-year card?
The answer is “yes”, you can still remove the conditions even if you do not file jointly with your spouse. You would have to file a waiver of the joint filing requirement using the same form, Form I-751. On the first page of the form, you would have to indicate the basis for your waiver. There are four:
- You and your U.S. citizen spouse entered into the marriage in good faith, but the U.S. citizen spouse subsequently died;
- You and your U.S. citizen spouse entered into the marriage in good faith, but the marriage was later terminated due to divorce or annulment;
- You and your U.S. citizen spouse entered into the marriage in good faith and have remained married, but you have been battered or subject to extreme cruelty by the U.S. citizen or permanent resident spouse, or
- The termination of your status and removal would result in extreme hardship.
Note that if you are eligible under more than one ground, then you should indicate that on the form by checking each box that applies to you. For some of the above grounds, specifically ground number 2, you must provide evidence that your marriage has been terminated by furnishing a final divorce decree. Additionally, the 90-day rule I wrote about in the first paragraph, does not apply to this ground and you may file your application AFTER your conditional card expires.
In addition to Form I-751, you will have to provide evidence to establish the waiver claim you selected. The evidence you must provide depends on the waiver ground you select. The following is a list intended to help you gather the necessary documents.
- Documents that show you entered your marriage in good faith:
- A personal affidavit in which you describe how you met your spouse, how you got married, circumstances surrounding your marriage, your feelings, etc.
- Birth certificates of any children born to your marriage.
- Wedding photographs, cards, letters addressed to you and your spouse.
- Letters or cards you and your spouse have written to each other.
- Any documents that contain both your and your spouse’s names (residential or car leases, mortgages, bank account statements (checking and/or savings), health/life/car insurance statements, rental agreements, financed purchases (furniture, appliances, etc.).
- Documents that show you are no longer married:
- A final divorce decree;
- A death certificate;
- Annulment order.
- Documents that show spousal abuse:
- A personal affidavit in which you describe in great detail how you and/or your children were treated by your spouse (physical harm, injuries sustained, threats (including those of deportation), sexual demands, control, physical and/or mental cruelty, any other behavior that made you fear for your own safety or for safety of others) and how you and/or your children felt through these difficult times.
- Affidavits from other persons who know about the abuse and the way your spouse treated you and/or your children.
- Police reports (if police were involved at any point).
- Past or present court orders prohibiting your spouse to approach you and/or your children.
- Hospital reports showing you were physically and/or emotionally harmed be your spouse.
- Letters from shelters at which you stayed, or therapists you had to see, or any other group support services you received as a result of your abuse.
- Documents that show you will endure extreme hardship if you return to your country of origin:
- A personal affidavit in which you explain what would happen if you were to return to your home country. For example, if you have been a victim of domestic violence or sexual assault, describe the consequences of abuse suffered, as well as any impact of loss of the United States criminal justice system, health services system, etc. Any consequences you and your children would suffer as a result of having been victims of abuse.
- Any other evidence in form of letters or official reports that would support your claim of extreme hardship if you were to return to your country of origin.
Note that all documents submitted must be in English, or translated into English. Additionally, the list of the documents above is not exhaustive. Thus, if you have any other documents that you feel would support your claim, you should use them.
Once everything is submitted to the USCIS, you will receive a receipt notice that extends your conditional resident status for one year. You will be able to continue working and living in the United States, as well as traveling. Several months after you submit your documents, you will receive a notice to appear for an interview at your local USCIS office. At this interview, you will be asked questions about your marriage and the grounds for the waiver you indicated on your application. At the end of the interview, the USCIS officer will decide whether to remove your conditions and grant you permanent resident status.
Beware that the cases in which a waiver of the joint application is submitted are more complex than the ones where both spouses are filing jointly. Many times an advice of an experienced immigration attorney is needed. If you are in doubt as to which waiver grounds are applicable to you, or which evidence you must submit with your application, please give us a call at (757) 464-9224 or contact us online. We will be happy to help you with the entire process!
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