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Battered Spouse Waiver for Conditional Residents

Posted by attorney Samuel Maina

Marriage is a milestone in many people's lives. Obtaining your lawful permanent residence through marriage should be a straightforward and pleasurable experience. But what happens when you are being abused in your marriage but you need your spouse to help you remove the conditions on your residence?

Before 1986 the Immigration laws allowed for an applicant to be granted Lawful Permanent Residence (Green Card) in as little as 3-6 months. As a result many people saw a fake marriage to a US Citizen as a fast and easy way to obtain residence in the US. While not all immigrants engaged in this type of marriage fraud, enough did that the US Government passed the 1986 Immigration Marriage Fraud Act (IMFA) in response.

IMFA dictated that an immigrant who received his or her Lawful Permanent Residence before their two year wedding anniversary would be considered a “Conditional Resident." They would then have to petition to remove the conditions in order to receive an unrestricted 10 year Green Card. This petition required the signature and support of their petitioning spouse.

One of the unintended consequences of this law was that many immigrants who were in abusive relationships would remain in those abusive situations in order to “wait out" the two year period. They felt that if they left the marriage they would jeopardize their chances of retaining their residence.

There is, however, another option - seeking a waiver of the joint filing requirement based on abuse. By providing evidence of the abuse you suffered during the marriage, as well as proof that you entered the marriage in good faith (you did not marry just to get a Green card), you may be able to retain your lawful permanent residency without having to rely on your abusive spouse.

If this situation is similar to yours, you should speak with a competent immigration attorney to help you determine whether you qualify for this waiver.

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