John and Jane first met at a local coffee shop, fell in love, and got married while they were still students and struggling financially. Jane was a United States Citizen and petitioned for John as the beneficiary spouse. However, less than six months into the marriage, the young couple's relationship became strained. Jane left John without any notice and cannot be reached when it came time for an interview for Permanent Resident Status.
In general, a person who marries a U.S. citizen or lawful permanent resident obtains conditional resident status unless the marriage is more than two years old when immigrant status is granted. A person's conditional residency will be terminated if the U.S. Citizenship & Immigration Service (USCIS) determines that a) the marriage was judicially annulled or it terminated before the second anniversary of the conditional residency grant (other than through the death of the spouse); b) the marriage was entered into for the purpose of procuring the alien's entry for a fee, or other consideration was given for filing the petition; or c) the alien and spouse failed to jointly petition the USCIS by the second anniversary of the conditional residency, or the alien and spouse failed to jointly appear at the USCIS interview (unless good cause is shown).
In John and Jane's situation, the marriage was less than two years and Jane could not be reached in time to make the required joint appearance at the scheduled interview with USCIS. When a petitioning spouse refuses to cooperate in filing the I-751 (Removal of Conditional Residency Petition) or attending the interview, the alien spouse must use the waiver procedure.
A waiver of joint filings may be granted in any of the following four situations: 1) Extreme Hardship 2) Good Faith Marriage 3) Battered Spouse or Child 4) Death of the Petitioning Spouse. In this case, John could use a Good Faith Marriage Waiver as long as the alien spouse entered into the marriage in good faith and submits an affidavit explaining what led to the separation and how the parties are attempting to reconcile.
Evidence of good faith marriage includes documentation concerning the commingling of assets of the parties, any children born to the marriage, and the length of time the parties lived together before breaking up. Furthermore, the alien spouse must show that the marriage has been terminated and that he was not at fault in failing to file a timely petition. For couples who are separated but not divorced, an I-751 can be approved even though the parties are no longer living together.
The USCIS is supposed to consider both the validity and the good faith of the marriage when the parties were married, not when the I-751 was filed. However, USCIS practices vary around the country on this issue and we strongly advise you to seek proper legal advice from an attorney if you think you qualify for a waiver of the joint filings.