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I-751 Hardship Waiver Option for Conditional Residents Who Can’t File for Divorce

On Behalf of | Sep 29, 2014 | Green Cards |

One aspect of the I-751 Extreme Hardship waiver that conditional green card holders should be aware of is that divorce is not a prerequisite in order to file under this ground. Whereas a conditional resident who intends on filing for the good faith marriage exception must ordinarily be divorced before filing the I-751, an individual who wishes to self-petition based on hardship can still be married to the spouse who originally petitioned for his/her green card. For example, it is not uncommon for a conditional resident to find him/herself in a situation where the US citizen /lawful permanent resident spouse refuses to cooperate or join in the I-751 petition to remove conditions. The couple may be experiencing marital difficulty, maybe even considering divorce, but no concrete steps have been taken towards a dissolution of the marriage. In this particular type of instance, especially if the green card is about to expire, the conditional resident would not be eligible to file under the good faith marriage exception because that waiver generally requires the divorce to be finalized. (There are limited exceptions where USCIS may accept the waiver if a divorce is in progress, but that is beyond the scope of this discussion.) If, however, the conditional resident can demonstrate extreme hardship, he/she may be eligible to file the I-751 on this ground.

What is required?

The statute, unfortunately, does not clearly lay out or define what is extreme hardship. For that matter, it is even vague as to whether the extreme hardship can extend beyond hardship to the conditional resident, ie., to a spouse, child, etc. However, it is clear that USCIS will only consider hardship that has arisen after the individual received his/her conditional residence. In other words, if the conditional resident had hardship issues that were present before he/she acquired permanent residence, they will ordinarily not be considered. However, anything after the grant of permanent residence could be considered, provided of course, that it constitutes hardship.

What is hardship?

While the statute does not define or give any guidance as to what qualifies as hardship, it is clear that the hardship must be extreme. In fact, it must be “significantly greater than the hardship encountered by other aliens who are removed from this country after extended stays.” Moreover, given that the term is the same as what is expected for other types of hardship waivers, USCIS may consider the following factors:

· Age of the alien

· If the alien has children, the age, number, and immigration status of the alien’s children and their ability to speak the language or adjust to life in another country

· Health of the alien and/or health of the alien’s child, spouse, or parent

· The alien’s ability to earn income and find a job in the country to which he/she would return

· Alien’s length of residence in the US

· Alien’s family ties in the US

· The financial impact of the alien’s departure

· The impact of a disruption of educational opportunities

· The psychological impact of the alien’s removal

· The current political and economic conditions in the country that the person would return

· Family and other ties in the alien’s country

· Alien’s contributions to and ties to the US

· Alien’s immigration history

These types of waivers are decided on a case-by-case basis. They are highly discretionary and ordinarily require an interview at the local district office where the conditional resident resides.

Not every case or circumstance will qualify as a hardship situation. At the same time, this exception is frequently overlooked, sometimes even by attorneys, in considering the best way to file for a conditional resident’s permanent green card when a joint I-751 is not feasible.

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