Policy Alert: Form I-751 and Battery or Extreme Cruelty Waiver
Contributor: Van T. Doan
Many individuals who become lawful permanent residents of the United States do so through marriage to another permanent resident or U.S. citizen. In order to prevent people from entering into fraudulent marriages to get a green card, Congress enacted the Immigration Marriage Fraud Amendments of 1986 (IMFA).
For individuals whose date of marriage was less than two years prior to obtaining permanent resident status, the IMFA makes permanent resident status conditional for two years following the date that it was granted. Removal of conditions on permanent resident status is not automatic. If steps are not taken to remove conditions within a specific time frame, conditional resident status expires after two years. Except for the fact that it expires, conditional permanent residence is identical to lawful permanent residence in all respects: conditional green card holders may work in the United States and travel in and out of the country.
As a general rule, conditional permanent residents (CPR) must file a Petition to Remove Conditions on Residence (Form I-751) within a 90-day window prior to the two year anniversary of being granted permanent resident status. If they fail to do so, the United States government may begin removal proceedings.
On December 12, 2023, the United States Citizenship and Immigration Service (USCIS) issued policy guidance regarding Form I-751. The policy guidance, which took effect immediately, clarifies matters relating to eligibility, filing, and adjudication of form I-751. Among other issues, the guidance addresses how a conditional permanent resident can change the basis on which they petition to remove conditions on residence in cases involving waivers based on battery or extreme cruelty.
What is a Waiver for Battery or Extreme Cruelty?
Ordinarily, when a conditional permanent resident petitions to remove conditions from their resident status, they do so jointly with their spouse if they are still married and cooperating with each other. However, in some cases, the CPR’s spouse may be unwilling to cooperate in filing Form I-751. One such scenario occurs when the CPR entered the marriage in good faith, but the spouse became abusive to the CPR or the CPR’s child. In that case, the CPR may request a waiver of the joint filing requirement for Form I-751 based on battery or extreme cruelty. The CPR may request the waiver on behalf of a child who has been subject to battery or extreme cruelty, as well as on their own behalf.
While the Petition to Remove Conditions on Residence must be filed within 90 days before the expiration of CPR status, the request for a battery or extreme cruelty waiver may be made at any time after they are granted CPR status. It is generally best to request a waiver as soon as possible. (It is also wise to request a waiver on as many grounds as are applicable. For instance, in addition to requesting a waiver based on battery or extreme cruelty, a CPR may also request a waiver on the grounds that deportation or removal would result in extreme hardship.) A waiver based on battery or extreme cruelty does not require the petitioner to be divorced or separated from the abusive spouse.
The IMFA did not originally contain a separate battery or extreme cruelty, but the waiver was created by the passage of the Immigration Act of 1990. CPRs who are eligible for this waiver are included within the Immigration and Nationality Act’s (INA) definition of a “VAWA self-petitioner.” That inclusion provides CPRs with certain protections as victims of abuse.
What is Considered “Battery or Extreme Cruelty?”
The phrase “battery or extreme cruelty” encompasses much more than just physical violence against the petitioner or their child. A person who is the subject of extreme cruelty may be:
- 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; or
- The victim of psychological or sexual abuse or exploitation, including rape, molestation (if the victim is a minor), or forced prostitution.
The categories above are some, but not all, of the circumstances that may be considered battery or extreme cruelty. Also, if a child who is a CPR had a parent who filed a waiver based on battery or extreme cruelty, and that parent died, the child may continue to be eligible for the abuse waiver.
Conditional permanent residents who are victims of abuse may lack access to some of the evidence necessary to prove that abuse and be eligible for the waiver. However, evidence from many sources can be used to support a request for a battery or extreme cruelty waiver. Sources of evidence may include reports or affidavits from police, judges, medical personnel, school officials, counselors, or the CPR him- or herself.
To learn about the updated policy guidance regarding waivers of the joint filing requirement for Form I-751 based on waivers due to battery or extreme cruelty, contact our law office to schedule a consultation.
Categories: Immigration Law