Filing a Form I-751, Petition to Remove Conditions on Residence, with a request that the joint filing requirement be waived
If you were granted conditional resident status through marriage to a U.S. citizen or permanent resident, you will file a Form I-751, Petition to Remove Conditions on Residence, to remove those conditions. Generally, the petition is filed jointly with your spouse; however, you may apply for a waiver of the joint filing requirement if: you entered the marriage in good faith, but you have been battered or subject to extreme cruelty by your petitioning spouse.
In 1994, Congress passed the Violence Against Women Act (VAWA), creating special routes to immigration status for certain battered non-citizens. Among the basic requirements for eligibility, a battered noncitizen must be the spouse or child of an abusive U.S. citizen or permanent resident. Pursuant to the law, a self-petition may be filed, if:
“(I) the alien is residing in the United States, the marriage between the alien and the spouse was entered into in good faith by the alien, and during the marriage the alien or a child of the alien has been battered by or has been the subject of extreme cruelty perpetrated by the alien's spouse.”
The self-petitioning process allows the battered spouse/child to apply for immigration status without the knowledge or involvement of the abuser.
A request for a waiver of the joint filing requirement must be accompanied by extensive evidence of battery/abuse/extreme cruelty and proof of the qualifying relationship to the abuser. Collecting evidence, however, can be a delicate process. On the one hand, the practitioner is tasked with building the strongest case possible for his or her client. On the other hand, the practitioner must be careful as to not revictimize the client through the evidentiary collection process.
In a recent case, a Request for Evidence (RFE) was issued questioning whether the evidence of marital conflict submitted rises to the level of domestic violence. The RFE stated,
“[m]arital tensions and incompatibilities such as apathy toward the relationship by one party, infidelity or substance abuse or a spouse, which place strains sometimes severe enough to result in a marriages disintegration, do no by themselves constitute extreme cruelty.”
Therefore, in order to avoid an RFE, a waiver request must meet certain evidentiary thresholds. This can be done by showing the following: (1) attempts to control through psychological means, including, but not limited to, emotional abuse, humiliation, degradation, and isolation; (2) economic coercion or control; and/or (3) a pattern or intent on the part of the abuser directed at achieving compliance from or control over the foreign national victim.
Do you need assistance preparing a Form I-751, Petition to Remove Conditions on Residence, requesting a waiver of the joint filing requirement? If so, please call the office and set up a consultation to speak with us.