{5:24 minutes to read} In the first Removal of Conditions article, we discussed the steps and possible pitfalls of filing a joint I-751. But what happens if you are not able to file jointly with your spouse? This will require you to file a waiver.

The first condition for a waiver is that the marriage was in good faith. Good faith marriage means that it’s a real marriage and not a marriage that was entered into for the purposes of procuring an immigration benefit. The way to prove good faith marriage is to show evidence and paperwork that the couple is together. What the United States Citizenship and Immigration Services (USCIS) focuses on is an intent to build a life together, best demonstrated by merging of financial assets and children of the marriage. As part of the “good faith” evidence, applicants should include affidavits from people who knew the couple, as well as pictures, letters, etc. that would prove the couple was actually married in good faith.

There are 3 waiver categories:

1. Good faith marriage that ended or was terminated

2. Good faith marriage and battery or extreme cruelty

3. Extreme hardship for the alien spouse to return to their country

Termination of a Good Faith Marriage

A good faith marriage that ended in divorce or annulment is by far the easiest type of waiver category to establish because you only need proof that the marriage was real and that it has ended in divorce. To use this ground for a waiver, the marriage must be terminated. This means that the applicant must be able to produce the divorce decree. This can be challenging because, in some jurisdictions, it can take up to a year to get a final divorce decree. If the applicant is simply separated, they do not qualify for this waiver.

USCIS scrutinizes more severely marriages that end before 2 years. Thus, it is still important to consult with an experienced immigration attorney who will be able to present the appropriate evidence to help establish your case.

Battery/Extreme Cruelty

In criminal cases, domestic violence is one of the most difficult to try. The same goes for immigration cases. Not only do these cases often happen behind closed doors, with only the victim and the abuser as witnesses, but they often go unreported. It can be very challenging if there are no records, police reports, or any statements from witnesses.

In those cases, we want affidavits, pictures of bruises/injuries, or anything that can support the applicant’s story that they were, in fact, battered or subject to extreme cruelty. The couple does not need to be separated to use this ground for a waiver.

Extreme cruelty is a bit vague and also difficult to establish because many non-physical abuse situations leave little evidence and can be open to interpretation by officers reviewing the case. What the USCIS means by extreme cruelty is that the U.S. citizen spouse has an intent to manipulate and control the alien spouse. They might:

— Control all the finances, and not give the alien spouse any money

— Isolate them from the family, society, or the community

— Do psychologically manipulative and abusive things

Extreme Hardship

The last ground for a waiver is extreme hardship. Extreme hardship is by far the hardest to establish because you have to prove that, if the alien spouse is removed and sent back to their country, they will suffer extreme hardship. Unless they are being removed to a country that is in a war zone or has dire human rights conditions, it is very rare that you’ll be able to prove extreme hardship. Even if they’ve formed a life in the U.S. and it will subject somebody to hardship, that doesn’t rise to the level of what USCIS considers extreme hardship.

All waivers have the same timeline and they can be filed at any time. This is different from Joint I-751s which are not waivers and have a different timeline. Joint I-751s must be filed in the 90 days before the expiration.

In all these cases, the best way to protect your legal status and to maximize your chances of being granted a permanent green card is to consult with an experienced immigration attorney. We at SMA can help. For questions or additional information email the author, Lora Minicucci, at lminicucci@smalawyers.com.

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