Battered Spouse Waivers

Authored By: American Gateways


What is conditional residency?

Conditional residency is a two-year conditional status granted to persons who obtain immigrant status based on a marriage that is less than two years old when they obtain permanent residence. Conditional residents are issued "temporary" conditional greencards. The general rule is that both spouses must file a joint petition to remove the condition within two years after the foreign spouse obtains conditional residence. If there is abuse, however, this joint filing may not happen.

Note - The conditional residence provision affects only noncitizen spouses who are admitted as immigrants on or after November 10, 1968 and whose marriage occurred less than two years before they either were admitted to the United States or adjusted status here.

How are the conditions on my residency removed?

Within 90 days of the end of the two-year residency, the conditional resident must file a Petition to Remove Conditions on Residence using Form I-751. If the conditional resident is still married to the US Citizen (USC) or Legal Permanent Resident (LPR) spouse, they will file the form together as a joint petition. If the marriage has ended, however, due to death of the USC or LPR spouse, or through a divorce or annulment or if there is abuse in the relationship, the conditional resident should not file a joint petition. Instead, she should file the Form I-751 alone as an application for a waiver of the joint filing requirement.

Filing Form I-751 as a waiver of the joint petition requirement

The conditional resident can ask that the joint filing requirement be waived based upon one of the following:

(1) The marriage was entered in good faith, but the USC or LPR spouse died;
(2) The marriage was entered in good faith, but the marriage has been terminated by divorce or annulment;
(3) The marriage was entered in good faith, but the conditional resident has been battered or subjected to extreme cruelty by the citizen spouse; or
(4) Termination of permanent residence and deportation would result in extreme hardship.

  • If the Bureau of Citizenship and Immigration Services (BCIS) service director is satisfied that the marriage was not for evading immigration laws then the I-751 petition will be approved. If BCIS is not satisfied about the marriage, however, the service center director will forward the petition to the BCIS district director who has jurisdiction over the conditional resident's place of residence so that an interview may be conducted.
  • If the BCIS approves the I-751 petition, the conditional status will be removed. BCIS will send a written notice of the decision to the conditional resident requiring her to report to the appropriate BCIS office for processing and to receive a new permanent residence care.