After an immigrant receives conditional residence based on marriage to a U.S. citizen, the usual next step, at the end of two years' marriage, is to jointly apply to turn that residence permanent. This is done by preparing and submitting Form I-751, the "Petition to Remove Conditions on Residence," to United States Citizenship and Immigration Services (USCIS). The joint petition is signed by both spouses, and accompanied by a filing fee (or fee waiver on Form I-912) as well as supporting documents to show a bona fide marriage.
If, however, your sponsoring U.S. spouse (or parent) has abused you, then for obvious reasons, that person might not cooperate in helping you fill out or sign the joint petition. But you're not out of luck. You have the option to request a waiver of the joint filing requirement, and file Form I-751 to receive permanent residence on your own. This option is commonly called the “battery/cruelty” waiver.
The law does not require the immigrant to be divorced or even separated from the U.S. spouse when applying for this waiver.
When to File Form I-751 With Abuse Waiver
You can file the Form I-751 and waiver at any time, before or after your conditional resident status expires. Although there is no deadline to file, your lawful status in the United States (and work authorization) will expire on the date your conditional residency ends. After that, the federal government has the authority to place you into removal/deportation proceedings.
If unsure when your conditional residency ends, look at the front of your green card, which shows the expiration date. Be sure to calendar this date.
What’s the Difference Between Battery and Extreme Cruelty?
This waiver requires you—the immigrant—to prove that your sponsoring U.S. spouse or parent subjected you to physical violence or threats of violence (battery) and/or psychological abuse (extreme cruelty). Acts of violence can include forceful detention, rape, molestation, incest, or forced prostitution. (See 8 C.F.R. § 216.5(e)(3)(i).)
Battery includes any act of violence (hitting, slapping, choking, punching, and so on) or threat of violence against someone that causes physical or mental injury. Battery most often refers to physical injury. However, it can also include verbal threats or gestures of violence, such as shaking fists or mock punching.
Extreme cruelty includes mental, emotional and/or psychological injury. It can include things like isolating, humiliating, minimizing, blaming, or exercising financial/economic control over someone, or manipulating them via their children or pets.
What Evidence of Battery or Cruelty Should I Submit?
You should submit any relevant documents, pictures, and/or letters to prove that you are eligible for this waiver based on having been battered or subjected to cruelty by the U.S. citizen sponsor.
Unless stated in the USCIS instructions, submit only copies, rather than original documents, because USCIS will not return any of them, even after your approval. All of the documents you submit remain in your immigration file. (If you have submitted an original document to USCIS, you may ask for it to be returned by filing Form G-884.)
Although USCIS sets no limit to the amount of evidence you can submit, not all evidence will be given equal weight. Documents from government agencies like local courts and police departments, as well as from medical professionals like hospital staff and licensed physicians, are given greater weight than other kinds of evidence, such as a letter from a friend.
Examples of these high-value documents include: court records showing prosecution or conviction for domestic violence, restraining orders taken out against the abuser, police reports showing incidents of abuse, or medical records documenting injuries.
If you are submitting a waiver based on extreme cruelty alone, you must submit an evaluation by a “recognized professional,” such as a licensed clinical social worker, psychologist, or psychiatrist. (See 8 C.F.R. § 1216.5(e)(3)(vii).)
If you divorced your U.S. spouse owing to the abuse, submit evidence of that as well, including any official determinations (also called “findings”) by the judge acknowledging the abuse.
One of the strongest kinds of evidence is your own personal statement. Include a written account of the battery and/or extreme cruelty you suffered. Give details of specific incidents of abuse, including dates and locations. Sign it under penalty of perjury; in other words, add sample language like: “I declare under penalty of perjury (under the laws of the United States of America) that the foregoing is true and correct.” This statement should be followed by the date, your printed name, and your signature.
In addition to your own statement, you can include statements; sometimes called affidavits; from friends, family, neighbors, coworkers or other acquaintances who have witnessed the abuse you have suffered. Like your own statement, an affidavit should be signed under penalty of perjury and be followed by the person's printed name and signature.
If an affidavit or statement is written in a language other than English, you must also provide a word-for-word translation.
How Do I Fill Out USCIS Form I-751?
To request a waiver based on abuse, you will (on the 04/01/2024 version of Form I-751) need to check box 1.e. under Part 3, in the section called Waiver or Individual Filing Request.
The waivers mentioned on this form are not exclusive of each other. Go ahead and check all that apply to your situation. If you have a final divorce and have also suffered abuse, for example, check both boxes under Part 3.
The rest of the form is largely self-explanatory. Once you’re done, make a copy for your records, enclose your documents, then mail it to USCIS at the address provided on its website. As someone applying for an abuse waiver, you need not pay the usual filing fee.
Do You Need to Hire an Immigration Attorney?
Immigration law is highly complex, but hiring a good attorney can help you wade through the options and strategize the best approach. The lawyer can also help you prepare any needed forms, gather documentary evidence, make legal arguments to USCIS, and monitor your case until it reaches a successful conclusion.