If you applied for a green card based on your marriage to a U.S. citizen, you will receive a “conditional” green card that is valid for only two years. Unless you take action to “remove the conditions” on your residence before the end of those years, not only the green card itself, but also your status and right to remain in the U.S. will end at that time.
To deal with this, you and your U.S. spouse are normally expected to jointly file Form I-751, Petition to Remove the Conditions of Residence with U.S. Citizenship and Immigration Services (USCIS), within the 90 days before the two years is up.
After that application is approved, you will be issued the standard permanent resident card (which has a ten-year expiration date but is easily renewed, even if you and your spouse are no longer together). For instructions about filling out Form I-751, see Filling Out USCIS Form I-751, Petition to Remove Conditions on Residence (Line by Line).
Over the course of the two years, however, various circumstances could arise making it impossible to file the petition jointly. Couples might separate or divorce; the U.S. spouse could die; or the U.S. spouse might simply refuse to cooperate. If your U.S. citizen spouse will not or cannot file this petition with you, there are a few circumstances in which you can apply for a waiver of the joint filing requirement and thus apply on your own, as described in What If Your U.S. Spouse Won’t Sign the Joint Petition (I-751)? Here, we will discuss in detail how to apply for a waiver based on extreme hardship.
One of the waivers that would allow you to lift the conditions on your permanent residence is if being removed from the U.S. would cause you or your dependent child “extreme hardship.” Although you do not have to simultaneously prove that your marriage was entered into in “good faith” as you do with the other waivers, this relief is discretionary, and the hardship threshold is difficult to satisfy. If you were not at fault in the breakdown of your marriage, you might want to consider filing for divorce in order to obtain a divorce waiver instead, as discussed at How Divorce Affects Your Conditional Residence Status.
If you intend to request the extreme hardship waiver, it is highly advisable to seek the advice of an experienced immigration attorney.
USCIS will look at the evidence you provide to determine whether or not you would experience “extreme hardship” if returned to your former country. In determining your eligibility, USCIS will consider any credible evidence that it considers relevant, so submit as much evidence as possible to back up your claims.
However, USCIS will take into account only the circumstances that occurred while you lived in the U.S. as a conditional permanent resident, so make sure you can build a convincing case using evidence from the past two years (See I.N.A. § 216(c)(4)(A); 8 U.S.C. § 1186a(c)(4)(A))
While the following is not an exhaustive list, conditional residents have been successful at obtaining hardship waivers in the following types of circumstances. You might qualify if:
For instructions on how to complete Form I-751, see Filling Out USCIS Form I-751, Petition to Remove Conditions on Residence (Line by Line). In Part 3, Basis for Petition, under Waiver or Individual Filing Request, put an “X” in Box "1.g" to indicate that you are applying for a hardship waiver, and fill out the rest of the application as instructed.
Submit your completed and signed I-751 petition along with the following:
After you file your Form I-751, you will be issued a receipt notice on USCIS Form I-797, which will serve as your green card during the time that USCIS is reviewing your case in order to make a decision. You may continue to live and work in the United States and travel abroad for the period specified on this notice.
Make sure to respond to all requests for evidence and appointment notices from USCIS. Most petitions to lift conditions that are filed with a waiver of the joint filing requirement will be referred to a local USCIS office for an interview. In preparation, gather copies of all evidence that you submitted. Be ready to answer questions about why you qualify for a hardship waiver.