Recently, the Second Circuit published a decision examining the burden of proof for determining “Good Faith Marriage” in Hardship Waiver to the I-751 waiver petition.
Immigrants who gain permanent residency through marriage to a U.S. citizen are only provided conditional permanent residency if their marriage is less than two years old. Conditional permanent residency requires the couple to file a secondary petition two years after the initial permanent residency is granted. The secondary petition, often called the removal of conditions petition requires the married couple to file a joint I-751.
Unfortunately, in many cases, the couple’s marriage does not last the required two years. In such cases, the immigrant must file an I-751 petition seeking the removal of conditions through a waiver. A waiver can be obtained based upon 1) the death of the U.S. citizen spouse, 2) being subject to battery or extreme cruelty from the U.S. citizen spouse, 3) the extreme hardship that the applicant would be forced to leave the United states, or 4) if the marriage was entered into in good faith and had ended in divorce.
A key difference between a joint petition and a petition seeking a waiver is that a person seeking a waiver has the burden of proving that the marriage was entered into in good faith. In a joint petition, the burden of proof is on the government.
The decision, Bolck v. Holder, confirmed that the immigrant applicant has the burden of proof in demonstrating that he or she had a good faith marriage when applying for a waiver to the joint petition waiver in a removal of conditions case. In that case, the applicant argued that he had met the burden of proof despite only living with the U.S. citizen for a short period, misrepresenting that he actually still lived with the U.S. citizen on a previous application, and (based on the court’s description) barely spoke the same language as the U.S. citizen.