Too often, many conditional lawful permanent residents remain trapped in abusive marital relationships because they believe that they will lose their status if the USC/LPR spouse "cancels their file" or fails to file for their permanent green cards. It is true that in general, the I-751, or Petition to Remove Conditional Residence, is a joint petition that is normally signed by both the USC/LPR spouse and conditional resident. However, a victim of extreme cruelty or battery has the option of requesting that this joint requirement be waived. In other words, this waiver ground does not require that the USC/LPR spouse participate or petition to remove the conditions on the immigrant's residence because the regulations recognize the plight of abused spouses, who should not be expected to remain married to or expose themselves to continued abuse solely in order to secure the abuser spouse's signature on the I-751. Furthermore, the law does not require that the marriage be terminated for these reasons in order to apply under this ground.
What constitutes "abuse"? Of course, this is a much more complicated question, which will be determined by USCIS. However, in general, the abused spouse must seek to prove abuse that is extreme, and usually abuse that is consistent over a period of time. A spouse that is lazy, neglectful, or just plain incompatible does not necessarily translate into an abusive spouse. Clearly, physical battery or behavior that is characterized by emotional abuse and manipulation is more along the lines of what is contemplated by the law.
In addition to the form, applicants should submit corroborating evidence of the abuse. Examples of such credible evidence include but are not limited to police reports; restraining orders; photos; hospital/medical records; detailed affidavits from friends, family members, or any other individuals who have personal knowledge of the abuse. In many cases, psychological reports from psychologists and/or social workers should also be considered. Applicants will also be expected to submit proof of the bona fide nature of their marital relationship. In other words, the applicant will be expected to prove the immigration status of the abuser; that he/she resided with the USC/LPR spouse; and furnish documentary proof pertaining to the genuine nature of the relationship.
While a joint petition must be within the ninety days prior to the expiration of the two-year conditional residence (not any earlier), applicants filing for a waiver of the joint requirement-whether through the marriage entered into good faith but terminated by divorce, extreme abuse, or hardship waiver grounds-may file at any time--provided the statutory requirements of the waiver are fulfilled. In any case, it is important to be aware that if the I-751 petition is not filed by the expiration of the conditional resident's two-year permanent residence, he or she is in jeopardy of not only losing his/her status but also being placed into removal proceedings.
Upon filing a complete waiver application, the applicant will be mailed an I-797 Notice of Action indicating the application has been received. Additionally, the receipt notice will also serve to inform the applicant that his/her conditional residence will be extended for one year while the application is pending review. For almost all waiver applications, applicants should expect to be called in for an interview before an adjudicating officer at their local District Office to review the merits of their case. Should the officer be satisfied that the alien has been subjected to extreme abuse and/or battery, the waiver application will be approved and the alien will be conferred his/her permanent residence without conditions.
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