How will separation, divorce, or death of my spouse effect my conditional permanent residency?
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What do you do if the U.S. citizen spouse refuses to sign the I-751? What if the marriage has terminated by reason of divorce or death of the citizen spouse?
The immigrant spouse can apply for one of the three waivers: 1) "good faith" waiver 2) the good faith and battered waiver and 3) the extreme hardship waiver.
If the marriage has ended through divorce of annulment, the immigrant spouse can file a waiver on an I-751 form, which provides that the conditional residency was based on good faith marriage to an U.S. citizen or permanent residents. In such case, there should be sufficient evidence to establish that the marriage was "entered" into in good faith.
If the immigrant spouse is still married to the U.S. citizen, the immigrant spouse can file the battered spouse waiver asserting the immigrant spouse entered the marriage in good faith, but has been battered or subjected to extreme mental cruelty by the U.S. citizen or lawful permanent resident spouse. The immigrant spouse must present evidence that supports the good faith of the marriage, and proof of the abuse. If the immigrant is trying to establish extreme mental cruelty, the immigrant spouse will need to have the I-751 signed by a licensed clinical social worker, psychologist or psychiatrist.
The extreme hardship waiver provides that the Attorney General "may remove the conditional basis of the permanent residence for an alien" who does not file the joint petition if "extreme hardship would result if such alien is removed." INA 216 (c) (4) (A). Further, the regulations further provide, "The director shall bear in mind that any removal from the United States is likely to result in a certain degree of hardship, and only in those cases where the hardship is extreme should the application for waiver be granted. The burden of establishing hardship rests solely with the applicant."8 CFR 216 (e) (1).
Joints I-751s, and I-751 waivers are filed with the service center having jurisdiction over the conditional resident's place of residence. The joint petitions can be approved without interview, and often are, if properly supporting by documentation of the good faith of the marriage. The waiver applicants are interviewed at the district office having jurisdiction over the immigrant's place of residence.
© 2000 McCoy Law Office