If your spouse is physically or emotionally abusive, filing the I-751 petition and obtaining USCIS approval for permanent residence might be tough, but the law provides a useful relief.
If you become a US resident by marriage to a US citizen, you will be granted a “conditional” green card that will expire in two years. You and your spouse are required to submit Form I-751, Petition to Remove the Conditions of Residence, with US Citizenship and Immigration Services within 90 days after this expiry date (USCIS). You will be able to stay in the United States if you do so. When your application is granted, your conditional resident status will be changed to permanent residence in the United States.
However, if your spouse is physically or emotionally abusive, it may be impossible to file the I-751 petition at all. Abusive U.S. spouses have been known to delay and refuse to comply, knowing that the immigrant relies on the citizen’s help in acquiring the green card.
The good news is that US law allows you to deal with this problem by completing the I-751 alone and requesting a “waiver” if you can verify the abusive situation. After your I-751 is accepted and you become a permanent resident, your ability to live and work in the United States cannot be revoked because you are no longer married to your spouse.
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Considerations for Victims’ Safety and Privacy
When seeking assistance online or over the phone, keep in mind the privacy of your computer, smartphone, or tablet. Some victims may use the same device, network, or phone plan as the abuser, enabling the abuser to see the victim’s search or call history or monitor their activities in other ways. Many smart gadgets include cameras or GPS tracking that may be used to track and locate a victim. An abuser may even conceal a tiny monitoring device in a vehicle, backpack, pocket, or other personal things. If you are worried about your privacy or safety, various groups, like the National Domestic Violence Hotline and RAINN, can help. You may also look at our Resources for Crime Victims.
How to File Form I-751 If You Don’t Have a U.S. Spouse
Conditional residents may submit Form I-751 without the assistance of their U.S. citizen spouse if they seek and are granted a waiver of the joint filing requirement based on battering or abuse by that spouse. (Conditional resident children who have been mistreated or abused by a U.S. citizen or conditional resident parent may also apply.)
Furthermore, conditional residents who would face significant hardship if they were repatriated to their home country, or whose spouse has died, or who have divorced, may petition for a waiver, as explained in What if Your U.S. Spouse Won’t Sign the Joint Petition? (I-751).
You may apply for any or all of the joint filing waivers that you are eligible for at the same time. You should, however, consult with an experienced immigration attorney before requesting a waiver of the joint filing requirement, since you will need to supply extensive proof with your petition.
This article will go through what is required to seek for a waiver based on abuse or battering.
What Sets the “Battered Spouse” Waiver Apart From a VAWA Self-Petition
For persons who have previously obtained conditional resident status who have been assaulted or mistreated by their U.S. citizen spouse, a Form I-751 waiver is available. You may not submit Form I-751 at this time if you have not yet gotten a temporary green card as a result of your marriage, even if you have been mistreated by your U.S. citizen or permanent resident husband. The same is true for mistreated or beaten foreign-born children who were never conditionally admitted.
Domestic abuse victims and their children, on the other hand, may self-petition for a green card based on marriage to a U.S. citizen or legal permanent resident by completing USCIS Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. This petition is also available to men. More information is available at Green Card Under the Violence Against Women Act (VAWA): Who Qualifies.
How to Establish Battery and Cruelty for the I-751 Waiver
The definition of battery as defined by USCIS is simple: physical aggression perpetrated against someone by their spouse. This includes punching, slapping, shoving, any other physical harm, and forced sex.
Extreme cruelty is defined by USCIS as nonviolent abuse inflicted on someone by a US citizen spouse in order to dominate, control, or humiliate them. The following are instances of actions used by conditional residents in the past to demonstrate “severe cruelty,” however each case is unique and this list is not exhaustive:
Threatening to report someone to USCIS or another government agency, or refusing to complete Form I-751 jointly with you.
Threatening divorce, particularly if divorce is frowned upon in the immigrant’s culture or religion.
Threatening to physically harm the immigrant or family members.
Invading your privacy for control purposes, such as reading or intercepting mail and emails, monitoring phone conversations and internet activity, and spying on personal possessions.
Withholding money or food as a form of punishment or control over the immigrant.
No communication with relatives or friends is permitted.
Taking away transportation or crucial papers (such as a driver’s license or passport) to prevent an immigrant from leaving the house.
Destruction or disposal of personal property on purpose.
Uncontrollable rage or yelling on several occasions.
Name calling and nasty remarks (both public and private) are used to humiliate the immigrant.
You must describe as many information and specific examples of your spouse’s abusive behavior as possible, as well as how these behaviors harmed you and limited or controlled your life. Recounting instances of this conduct may be unpleasant and emotionally draining, but it is important in order to persuade USCIS to issue a waiver.
You will need documentation to establish that you were a victim of domestic abuse, therefore submit more than a personal statement. Official police and medical personnel reports, medical records and images of injuries, and testimonies from social workers and school authorities are all valuable sources of proof. You may also submit affidavits from other persons who can relate incidents of violence and beating imposed on you by your husband.
What to File With USCIS When Applying for Permanent Residency
Filling Out USCIS Form I-751, Petition to Remove Conditions on Residence, provides guidance on how to complete Form I-751 (Line by Line). Put a “X” in Part 3 (Basis for Petition) Box 1.e. if you are a conditional resident spouse, to indicate that you are applying for the domestic violence waiver. Put a “X” in Box 1.f if you are a conditional resident kid seeking for this waiver. Then complete the remainder of the application as directed.
To file a Form I-751 with a waiver based on abuse or battering, you must provide the following with your completed and signed petition:
If you cannot pay the filing cost ($595, plus $85 for biometrics in 2023), you may instead complete Form I-912, Request for Fee Waiver. (Confirm the current USCIS charge, which is published on its I-751 website; USCIS was considering a price increase as of early 2023.)
a certified copy of your permanent residency card (front and back sides).
Evidence of abuse or severe cruelty by your United States citizen spouse; or evidence of battery or extreme cruelty by your United States citizen or conditional resident parents if you are applying as a conditional resident kid (see examples above).
If you are applying as a conditional spouse, you must provide proof that your marriage was legitimate. You must demonstrate that your connection was not a fake or a scam intended to violate immigration law. See Submitting Documentary Evidence of Good Faith Marriage With Form I-751 for a list of papers that conditional residents have used to establish that their marriage was entered into in good faith.
What Happens After You File Form I-751 with USCIS?
Following the submission of your I-751, you will be granted a receipt notification on USCIS Form I-797, which will basically act as your green card while USCIS is examining your case. You may continue to live, work, and travel in the United States during the duration of this notice.
Respond to any USCIS demands for documentation and appointment reminders, and notify them if your address changes.
You will ultimately be scheduled for an interview at a local USCIS office, where you will be asked questions regarding the particular incidents of your spouse’s excessive cruelty or abuse, as well as questions about your marriage.
Examine the proof that you prepared for USCIS in advance: You want to ensure that your responses to the USCIS official’s in-person inquiries match the proof you filed, and that you don’t make any mistakes with dates or names.