If you are separated but not yet divorced, filing an I-751 form can be more complicated. Your options depend on whether your spouse is supportive of the petition and whether any extraordinary circumstances, such as abuse or extreme hardship, apply to your case.
Filing without Spousal Support
If your spouse is unwilling to cooperate, you may need to file for a waiver based on either extreme hardship or abuse. These options allow you to file at any time, even before the typical 90-day window before your green card expires. An extreme hardship waiver requires proof that you would suffer significant hardship if removed from the United States. This could include medical conditions, financial dependency, or ties to the country that make departure particularly burdensome. An abuse waiver requires credible evidence of abuse or cruelty during the marriage. This can include police reports, medical records, restraining orders, or affidavits from therapists or counselors. Both waivers require substantial supporting documentation to demonstrate the circumstances justifying the request.
Filing with a Supportive Spouse
If your spouse is willing to support the petition despite separation, you may still be able to file jointly. However, it is important to maintain transparency with USCIS to avoid credibility issues. Disclosing the separation to USCIS and providing an explanation, such as work-related distance or temporary marital challenges, can help establish trust. Evidence that the marriage was entered into in good faith, including joint financial records, affidavits from both spouses, and other documentation, should be submitted. If a USCIS interview is scheduled, both spouses may need to confirm the nature of marriage and separation. Transparency and strong supporting evidence can help mitigate concerns and improve the likelihood of petition approval.
Navigating the Process
Filing an I-751 while separated presents unique challenges, but it is possible to succeed with a well-prepared petition. Whether filing jointly or seeking a waiver, the key to success lies in providing comprehensive documentation proving that the marriage was bona fide. Understanding your rights and taking a strategic approach will improve your chances of obtaining permanent residency. Our experienced team at Berardi Immigration Law is here to help. Contact us today to secure your future and maximize your opportunities.
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