Conditional Permanent Residency and Extreme Hardship Waiver

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In our previous blog post we reviewed the options available to conditional permanent residents who are going through troubles in their marriages.

Generally, if your marriage is less than two years old at the time when you became a permanent resident, your permanent residence status is conditional. You need to show to the U.S. government that you did not marry your U.S. spouse for the purpose of evading the immigration law.

To comply with the requirements, you and your spouse have to file a joint I-751 petition requesting the conditions on the permanent residency removed during the 90 day period before the two year anniversary as a conditional resident. That means that both spouses have to sign the petition and then appear to the interview together.

What if, however, you are unable to file a joint petition for whatever reasons? The U.S. immigration law provides for some exceptions to the joint filing requirement. One of the exceptions is that the requirement of the joint petition can be avoided by filing a petition requesting a waiver of the joint filing requirement based on potential extreme hardship that you would suffer if you were removed from the U.S. It is called an “extreme hardship” waiver and it is very difficult to obtain.

The person filing such a waiver has the burden of showing that her removal from the U.S. would result in extreme hardship. It is obvious that any deportation to a different country would result in some amount of hardship, so only cases involving “extreme” hardship qualify. Generally, any kind of past hardship suffered before or after you became a conditional permanent resident will not be taken into consideration, unless it has a direct bearing on a hardship that you will suffer in your country if you were removed there.

There is no specific definition of what constitutes “extreme hardship” and each situation is analyzed on a case-by-case basis. However, United States Citizenship and Immigration Services (“USCIS”) does utilize certain factors to make a decision. Among these factors are the following:

- Your age

- Your children’s circumstances and their ability to adjust to life in your country

- Your and your family’s health and the availability of medical treatment in your country

- Your ability to find employment in your country

- How long you lived in the U.S.

- Any family members who legally live in the U.S.

- The financial impact of your departure

- The potential loss of educational opportunities

- The psychological effect of your departure

- The political and economic situation in your country

- The family and other ties to your country

- The level of your assimilation and community involvement in the U.S.

- Your immigration history

- The availability of other means of getting permanent residency

USCIS will look at all of these factors in the aggregate. At the same time, none of the factors are conclusive or exhaustive, and you can consider some other factors not on this list to prove your case. Be aware though that simple economic hardship resulting from you losing your job in the U.S. and loss of financial support does not rise to the level of “extreme hardship.” Giving birth in the U.S. is not by itself “extreme hardship” either. Neither does the mere fact of uprooting your life here and then having to move to a completely different country would qualify. It is the combination of adverse consequences taken in the aggregate that would push you to experience a level of hardship above typical hardship suffered by person forced to relocate.

Unlike the other types of waivers, the extreme hardship waiver does not require the applicant to show that the marriage was entered into in good faith. That does not mean that marriage fraud would get a free pass, however. Since the decision regarding the waiver is discretionary, the evidence of a bad faith marriage may be used by USCIS in weighing all the factors. Such evidence has to show significant negative factors to justify a denial.

In short, in order to prepare a persuasive petition, you need to be able to provide a great deal of evidence documenting various types of harm and hardship that you would suffer if you were removed from the United States.