Filing I-751 Waiver Based on Abuse
by Reuben Seguritan
A foreign spouse has conditional residence in the United States for two years if he/she acquired permanent residence because of his/her marriage to a US citizen or lawful permanent resident (LPR). The immigrant spouse must file Form I-751 or Petition to Remove Conditions on Residence jointly with his/her spouse with the US Citizenship and Immigration Services (USCIS) during the 90-day period immediately before the expiration of the conditional green card in order to receive the full-ten year green card.
There are instances, however, when joint filing of Form I-751 is not possible. An example is the case of a battered or abused spouse. In this case, the foreign spouse can file the I-751 domestic abuse waiver without the intervention of the US citizen or LPR spouse who is abusive or cruel. The filing of a domestic abuse waiver of the joint petition requirement results in automatic continuation of the conditional residence status.
For a domestic abuse waiver of the joint petition requirement, the immigrant spouse must demonstrate that he/she entered into the marriage in good faith and that he/she or her child has been battered or subjected to extreme cruelty by the US citizen or LPR spouse.
A good faith marriage is one where the parties intend to build a long-lasting life together and not entered solely to confer immigration benefits on one of them. USCIS will consider evidence relating to the commitment of both parties to the marriage. The regulations state that proof can be in the form of the commingling of assets, cohabitation of the parties, and children born to the couple, and all other evidence deemed pertinent by the USCIS.
USCIS views domestic violence in terms of “battery or extreme cruelty” which can include but is not limited to, being the victim of any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury. Other forms are psychological or sexual abuse or exploitation, including rape, molestation, incest, or forced prostitution. In the cases where children have been physically abused or subjected to extreme cruelty by a US citizen or LPR spouse during the marriage, the conditional resident parent of that child can apply for the waiver regardless of the child’s immigration status.
Documentation of battery and extreme cruelty can be in the form of any of the following: police reports or other criminal court documents; civil protection order documentation; medical documentation of injuries (reports or photographs); personal declaration of victim; letters from domestic violence or sexual assault service providers; letters from counselor or therapist detailing how conduct of abuser can be considered as abusive behavior; letters from family or friends who can write about their personal knowledge of the abusive behavior; and criminal record of the abuser, especially in cases of previous charges of domestic violence and/or assault.
For extreme cruelty, the USCIS defines this as “acts that are part of a pattern of threatened violence or psychological abuse that are intended to control the victim or substantially diminish her quality of life.” Thus, extreme cruelty can be considered in light of numerous types of conduct, like social isolation, threats, accusation of infidelity, constant contact and monitoring, economic control, degrading behavior, insults and/or threats to contact immigration authorities or withdrawal of petition.
It is important to remember that the foregoing spouse is not required to divorce the abuser, nor to leave the relationship. The fact that the survivor remains married to and/or lives with the abuser does not diminish the validity of the petition.