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I-751 waiver applications

If you become a resident based on a recent marriage (less than two years) you become a “conditional” permanent resident (green card holder). Normally, you would file a petition with your husband or wife two years later to become a full permanent resident. If the marriage ends before your petition is filed – or your spouse refuses to cooperate with your petition – you may still be eligible to become a permanent resident.

What do you need to prove for an I-751 waiver?

There are three different ways that you can apply for an I-751 waiver.

  1. Divorce + good-faith marriage. If your divorce is finalized by the deadline for your I-751 petition then you can use this option. You may also use this option if your spouse has passed away. The I-751 petition is due two years after your conditional residency card was issued. If your divorce is almost finalized USCIS will generally grant a short additional window for you to file proof of the finalized divorce (but the I-751 petition still needs to be filed on time). To use this strategy you are also required to show that the marriage was genuine. To prove that we use the same sort of evidence you may be familiar with from your initial marriage-based application process.
  2. Abuse by U.S. spouse. If were abused by your U.S. spouse this option may be available to you. The abuse does not need to be physical in nature. Event purely psychological abuse can serve as the basis for a successful I-751 petition. In such cases we would typically recommend submit an evaluation by a psychological expert.
  3. Extreme hardship. The final way to seek approval of an I-751 waiver is by showing the hardship you would experience if you were forced to return to your home country. See below for more information about proving hardship.

Whose hardship matters?

For I-751 waivers, USCIS looks at whether the petitioner would experience hardship if forced to leave the U.S. In other waiver applications the focus is on family members, but here the focus is on the petitioner herself.

What factors will be considered?

Immigration law does not define the term “hardship”. Instead, court cases have said the following factors should be considered: age; length of presence in the U.S.; family ties to the U.S. versus to the foreign country; community ties; financial impact; health issues; and, the availability of immigration benefits.

What evidence is presented?

It is very important to present strong evidence in support of a hardship case. The attorney will work with the immigrant, family members, and friends to write detailed letters explaining the circumstances of the case. These letters must be carefully prepared to address the relevant legal question. The attorney will also work with you to locate records that support your case, including medical, financial, employment and education records. In cases with special health or psychological circumstances, it may be useful to have a psychologist conduct an evaluation.

This Post Has 2 Comments
  1. Hello, I’mlooking for a second opinion. I’ve been assisting a friend whose conditional green card is soon to expire. He has an immigration attorney who will be filing a waiver on his on his behalf based on the marriage falling apart. The issue is that the attorney seems resistant to filing prior to the divorce being finalized. The couple separated in Jan but did not meet the grounds for divorce in one of the 2 states they resided in, and residency requirement in the current state until recently. Keep in mind the US citizen (spouse) does not want a divorce and/or is refusing to divorce in an effort to prevent the conditions from being removed. Is there a provision in the law that provides an exception to this situation for not filing on time AND will the individual still legally be able to work while “out of status”?

    1. Hi, Angela. A couple things.

      (1) If your friend wants a second opinion she really needs to sit down with a second attorney. It’s really impossible to offer much input here about whether the first attorney is doing things correctly or not.

      (2) There are multiple grounds (three) for getting an I-751 approved when a couple is separating. One is showing divorce + good faith marriage. To win on this ground – which is often the easiest – you need a final divorce decree. If the divorce is being contested then that can really draw out the process. If the attorney is advising to wait for the decree that is potentially good advice as you will get a Request for Evidence if you don’t provide the decree.

      (3) If the I-751 is not filed by the 2-year deadline then your friend will automatically be out of status.

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