Hello Linda, my name is ***** ***** I am delighted to answer your questions today. I have 35 years experience as an immigration lawyer.
Unfortunately the law does not allow you to request a waiver of joint filing unless you meet certain conditions. The law is very strict and you can only get a waiver if:
1. If your spouse died;
2. You were abused and have proof of physical abuse such as police reports and restraining orders or if emotional abuse, a report by a licensed therapist;
3. Your marriage has been terminated.
Since you do not seem to fall into any of the exceptions, you cannot qualify to request a waiver and to file jointly you must be living together in a real good faith marriage, not living apart. It is irrelevant whether there is a legal separation or not. The law requires you to be living as a married couple to file jointly or terminate the marriage.
Here is the USCIS Memorandum instructions on filing the I-751 during a separation and the requirement that USCIS request evidence of termination of the marriage within a specified period of time in the RFE = Request for Additional Information.
I understand you hold hope for a reconciliation with your spouse and do not want to terminate the marriage but the law does not give you that option.
So if you want to remain in the US you need to comply with the law's requirements and get a very quick divorce.
The lawyer whom you consulted did indeed give you the best advice. Not only will a divorce make it easier, it will make it possible. Currently your marital status will not permit approval of the I-751 and you do risk being put into removal proceedings.
Keep in mind the law is written to cover a broad spectrum of applicants and does not always allow for consideration of one's individual circumstances. Unfortunately, you fall into the broad category requiring termination of the marriage to qualify.
If you feel you will qualify for asylum based on fear of persecution in your home country you can request asylum at your removal hearing.
Otherwise, there is no basis for you to remain in the US based on the marriage.
My goal is to provide you with excellent service – if you feel you have received anything less, please reply back as I am happy to address follow-up questions. Understand, it is my job to be honest and truthful about the law and sometimes the law does not give you the solution or options you want. Kindly give me a positive rating when you are done. If you feel I earned a BONUS, I am grateful. In the future, you may begin your questions with “FOR JUDITH” and I will be your personal immigration expert.