Marriage does not always mean a house with a white picket fence. Trying to build a life together is even more difficult when one spouse's immigration status depends on the marital union, as it builds extra pressure and may even be used as a leverage by a US citizen spouse.
When a permanent resident status (LPR) is granted based on the marriage to a US citizen, and the marriage was less that two years old at that time, the LPR status will be conditional - valid for only two years, and a petition for removal of the conditions must be filed jointly by spouses. There are, however, exceptions to the joint filing requirement. If a foreign national spouse is able to establish to the satisfaction of the adjudicating officer that the marriage was entered into in good faith, or if the foreign national spouse suffered abuse (physical or emotional), or if the US citizen spouse passed away, it may still be possible to get the permanent greencard. You will need an experienced immigration attorney to assist you with your waiver, and I will be happy to help you!
Guidelines to Drafting a Good Affidavit
Affidavit is a written sworn statement, a declaration made under oath, that can be admitted as evidence. An affidavit can be a great tool in obtaining an I-751 approval, especially if a waiver of the joint filing requirement is needed.
This is a sample redacted affidavit to show what information it must contain:
AFFIDAVIT in support of I-751 Petition to Remove Conditions [bona fide marriage exception waiver] of [insert name]
I, [full name], born on [date of birth], in [place of birth], US citizen [or state your citizenship and indicate your immigration status in the U.S., where applicable], residing at [full address], give the following sworn statement.
MAIN PART. Here is where you state all the facts that led you to believe that the couple in question had a real marriage. It is important to distinguish facts from conclusions. For instance, "I hereby testify that A and B lived together as Husband and Wife" is not very helpful, as it is just your conclusion. Instead, you should state the relevant facts. Describe how your met the spouses, under what circumstances, how long you have known them. Did you celebrate someone's birthday together? Describe the party, how the spouses behaved, the way they talked to each other. Got together for the last New Year's party? Excellent, describe the celebration and enclose a few photos you have taken. Maybe, one of the spouses shared with you their concerns about the other spouse, or problems in their marital unit. These are facts that would help the immigration officer establish whether the subject marriage was real or sham.
At the end of the affidavit, please use the following:
I declare under the penalty of perjury that the foregoing is true and correct to the best of my knowledge and beliefs.
Signature: ____________________ Date: ____________ [your full name]
You should sign the affidavit in front of a notary public. In California, the type of notarization should be "jurat." Please enclose a copy of your passport or green card to confirm your immigration status.