Filling Out Form I-751 With a Hardship Waiver

Filing Form I-751 alone, without your U.S. spouse? Here's how to ask USCIS to overlook that based on hardship you or your child would experience if deported.

By , Attorney (Temple University Beasley School of Law)

If you successfully applied for U.S. lawful residence based on your recent (within the previous two years) marriage to a U.S. citizen, you probably received a "conditional" green card, which itself 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 immigration status and right to remain in the United States will end at that time.

To deal with this, you and your U.S. spouse are 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 USCIS approves this, you will be issued the standard permanent resident card (which has a ten-year expiration date but is easily renewed). For basic instructions, 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 this 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, including:

  • whether you are eligible for an extreme hardship waiver
  • what level of "hardship" you will need to show to meet the "extreme" standard, and to whom
  • how to document this potential extreme hardship, and
  • what happens after you file an I-751 with an extreme hardship waiver request.

You Could Be Eligible for an Extreme Hardship Waiver

One of the waivers that would allow you to lift the conditions on your permanent residence is if being removed from the United States would cause you or your dependent child "extreme hardship." Mere sadness at departing the United States is not going to be enough. You will need to show some unusual or unique set of circumstances that would make it especially difficult for you and/or the child to return to your country of origin (as discussed further below, in the section on documenting this hardship).

Fortunately, you do not have to simultaneously prove that your marriage was entered into in "good faith" as you do with the other I-751 waivers. Nevertheless, this form of relief is discretionary (meaning U.S. immigration officers have to feel you deserve a special favor), and the extreme hardship threshold is difficult to satisfy. So if questions could arise as to whether your marriage was bona fide, and if you were not at fault in the breakdown of your marriage, you might want to consider filing for divorce and then requesting the simpler divorce waiver instead, as discussed at How Divorce Affects Your Conditional Residence Status.

What USCIS Considers "Extreme Hardship" for Purposes of This Waiver

USCIS will look at the evidence you provide to determine whether you or your child would experience "extreme hardship" if returned to your former country.

However, USCIS will take into account only the circumstances that occurred while you lived in the United States 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:

  • You have lived in the United States for an extended period of time. If you have spent a great deal of your life in the United States and do not have any family or ties in your home country, or if all of your family resides in the United States, you should provide affidavits and other evidence to this effect.
  • You do not speak the language of your home country. If you came to the United States at a young age and were not taught the primary language of your native country, this would be considered a hardship to you, as you would have difficulty making a living or settling into society there.
  • You have custody of your U.S. citizen children and they would need to accompany you to your home country. If you are the primary caregiver or custodial guardian of a U.S. citizen child who would need to accompany you if you were deported, you should provide documents (birth certificate, absence of other relatives who could care for the child) that prove this. If your U.S. citizen child would have difficulty assimilating into the culture of your home country, would not receive adequate medical care or education there, or does not speak the native language, make sure you gather documents that demonstrate this.
  • If you were removed from the U.S., your U.S. relatives would suffer without the income from your job. If you are working to provide income for your parents, dependents, or other family members who live legally in the United States, this could be considered adequately extreme hardship for the purposes of a waiver.
  • You would not be able to find work outside the United States. If it would be difficult to obtain employment in your home country due to poor economic conditions, discrimination, or a lack of jobs for people with your set of skills, provide evidence to this effect.
  • You have a medical issue that cannot be treated adequately abroad. If the quality of medical care in your country of origin is so poor that you would suffer health issues if deported, you should obtain a note from your treating physician and supply information about your medical condition or diagnosis.
  • The conditions in your country are such that you would experience persecution or discrimination. If you would experience extreme hardship in your home country due to your race, religion, political opinion, or membership in a social group, you should provide evidence that substantiates your status (a letter from your pastor, for example) and information that backs up your claim that people like you are persecuted or discriminated against. This is similar to the standards for asylum in the United States.
  • Your U.S. citizen spouse was at fault in the breakdown of your relationship or you cannot find your spouse in order to file jointly. If you are unable to locate your U.S. citizen spouse, or your spouse abandoned you, committed adultery, or otherwise contributed to the end of your relationship and refuses to file Form I-751 with you, you should explain that in your petition.
  • You are unable to get a divorce or annulment due to religious or cultural beliefs. If this applies to you and you cannot file for a divorce waiver, you could provide evidence of this to USCIS.

What You Must File With USCIS

In determining your eligibility for an extreme hardship waiver, USCIS will consider any credible evidence that it considers relevant, so submit as much as possible to back up your claims.

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:

  • Filing fee (see the I-751 page for the latest).
  • A copy of your permanent resident card (front and back sides).
  • Evidence of the extreme hardship you and/or your child would face if removed from the United States (see examples above).
  • Evidence that your marriage was genuine. You do not need to provide this evidence, but it could help your case if you can show that your relationship was not a sham. For a list of documents that conditional residents have used to prove that their marriage was entered into in good faith, see Submitting Evidence of Good Faith Marriage With Form I-751.
  • Evidence regarding the circumstances surrounding the end of your marriage (if you were not at fault).

What Happens After You File Form I-751 and Hardship Waiver Request

After you submit your Form I-751 to USCIS, the agency will issue you 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.

Getting Legal Help

If you intend to request the extreme hardship waiver, it is highly advisable to seek the advice of an experienced immigration attorney. The attorney can evaluate whether a hardship waiver makes sense for you, help you prepare the paperwork and draft appropriate cover letters and legal arguments, monitor the case and deal with delays, and accompany you to the in-person interview.

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