A Step-by-Step Guide to Filing the I-751 Waiver

If you gained U.S. conditional residence through marriage to a U.S. citizen, then your status will expire at the end of two years. In order to convert your status to that of a U.S. permanent resident, you must, within 90 days of that two-year expiration date, submit USCIS Form I-751.

The standard way of filling out and submitting Form I-751 is as a joint petition between the immigrant in his or her spouse. However, due to a variety of circumstances, some immigrants will be unable to file this petition jointly.

In such a case, you may be able to file for a waiver of the joint filing requirement and obtain U.S. permanent residence (a green card) without your U.S. citizen spouse’s (or former spouse’s) help.  The situations in which you may request a waiver, and steps toward filing the waiver, are described below.

Types of Waiver Requests

In order to file Form I-751 and meet the waiver requirements, each applicant must meet one of the following categories of eligible waiver applicants, as well as include the noted documentation. On Form I-751 itself, you will see that you have a choice of boxes to check in order to indicate which type of waiver you are requesting.

Note: Send copies, not originals, of any of the documents described below. If you send the original, you will in all likelihood lose it to the USCIS files.

• Widows or widowers: If your U.S. spouse died, you can request a waiver by showing that your marriage was entered into in good faith (and was not a sham to get the immigrant a green card), along with proof of the spouse’s death (a death certificate). Methods of proving a good faith marriage include documentation showing cohabitation over the last two years (such as a lease or mortgage agreement), co-ownership of assets (including bank accounts), joint utility bills, birth certificates of children born to your marriage, sworn affidavits from people who knew you, and so forth. 
• Immigrants whose marriage was terminated, but not due to death of spouse: You will need to produce documentary evidence of having entered the marriage in “good faith,” as described above. In addition, include a copy of the divorce or annulment decree. If the divorce is not yet final by the time that you have to submit your Form I-751, this can be problematic – consult with an attorney. 
• Immigrants who are still married, but have been battered or subjected to extreme cruelty by the U.S. spouse or parent. You will need to provide evidence showing that the marriage was entered into in good faith, as described above. In addition, you will need to provide evidence of the U.S. spouse or parent’s battery and/or cruelty, such as photographs of your injuries, copies of police reports; hospital reports; court records or orders; statements by doctors, counselors, social workers, school officials, religious leaders, and friends or neighbors who witnessed the abuse; and evidence that you sought protection in a battered women’s or similar shelter.
• Immigrants who would experience extreme hardship if removed from the United States, based on factors that arose during the two years of conditional residence. You will need to provide evidence showing that the marriage was entered into in good faith, as described above. In addition, you will need to provide evidence of the extreme hardship that you would face if returned to your home country. Every immigrant to has to readjust to life in another country after two years in the United States will face some hardship, so focus on proving that you would face even worse hardship than is typical.  For example, if you or one of your U.S. citizen children has developed health problems that cannot be adequately treated in your home country, this might be a basis for the waiver. Or if the political situation in your home country has changed and you would face danger there, this too might provide a basis for a successful waiver.

Follow the instructions on the USCIS website for preparing the application, including the latest filing fee, and submitting it. You will need to mail this to a USCIS office -- it's not the sort of application that you can deliver to a USCIS office in person.

Getting Legal Help With Preparing and Filing an I-751 Waiver

Seeking a waiver can be challenging, especially since you well need to compile a convincing set of documentation within a tight timeline. Getting expert legal assistance is a good idea.