Navigating the I-751 Process for Conditional Permanent Residents

When noncitizens obtain permanent residence based on marriage, they are granted conditional permanent residence if the marriage is less than two years old on the date that permanent residence is granted.  Conditional permanent residents must then file an I-751 in order to transition from a two-year conditional status to a permanent resident status that is valid indefinitely. This process is intended to ensure that the marriage was not entered into for the sole purpose of obtaining immigration benefits.

Generally, this I-751 petition is filed jointly by the noncitizen and their spouse, but in certain cases a noncitizen can file the I-751 alone and request a waiver of the joint filing requirement.

Understanding the I-751 Petition

The I-751, officially known as the Petition to Remove Conditions on Residence, is a form that must be filed by all conditional permanent residents. For noncitizens and their spouses who are filing the petition jointly, timing is crucial. The petition must be filed during the 90-day window before the conditional green card expires. Since the purpose of the I-751 requirement is to ensure that the noncitizen and their spouse did not commit marriage fraud (i.e. get married for the sole purpose of obtaining immigration benefits), applicants filing jointly should submit evidence of bona fide marriage with the petition. This evidence could include documents showing a shared residence, joint financial documents, shared assets, photographs, and affidavits from friends and family.

Waivers of the Joint Filing Requirement:

While the standard procedure is for the noncitizen to file the I-751 jointly with their spouse, certain circumstances may prevent this. In such cases, USCIS offers three main waivers. In these situations, the I-751 can be filed at any time – it is not necessary to wait to file within the 90-day window before the conditional green card expires.

1. Waiver based on Divorce or Annulment

If the marriage terminated within the two years that the noncitizen was granted conditional permanent residence, the noncitizen should file the I-751 with evidence of the termination of the marriage. In addition, the noncitizen is still responsible for providing evidence to demonstrate that the marriage was bona fide and not entered into for the sole purpose of obtaining immigration benefits.

Notably, there is no waiver of the joint filing requirement where the noncitizen and their spouse are separated and/or in the process of obtaining a divorce. USCIS recently updated its Policy Manual with detailed instructions on the process for adjudicating I-751s in these scenarios.

2. Waiver based on Abuse

Noncitizens who married their spouse in good faith and were subject to abuse by their spouse can request a waiver of the joint filing requirement. It does not matter whether the noncitizen and their spouse are still married, separated, or divorced, or whether the noncitizen and their spouse are residing together at the time the I-751 is filed. The USCIS Policy Manual provides examples of suggested evidence to include with this type of waiver request, such as reports from police, counselors, and/or school officials, medical records, and affidavits.

3. Waiver based on Extreme Hardship

A noncitizen who can establish that their removal from the United States would result in extreme hardship can obtain a waiver of the joint filing requirement. USCIS will only consider circumstances that occurred during the 2-year period of conditional permanent residence, or circumstances that arose before the 2-year period but continued through the period of conditional permanent residents. There is no requirement that the extreme hardship be to any specific person, though in most cases the hardship will be to the noncitizen.

Death of Spouse

Finally, while technically not a waiver, a noncitizen is exempt from the joint filing requirement if their spouse passes away during the period of conditional permanent residence.

Navigating the I-751 process can be a confusing process. Whether filing jointly or applying for a waiver, thorough documentation is key. If you have any questions regarding your case, including whether you might qualify for a waiver of the joint filing requirement, please reach out and we would be happy to discuss your situation!