An individual who seeks to file an I-751 petition must present that his/her case is very unique. Petitions based on exceptional hardship are very difficult to obtain approval; therefore, you will want to seek counsel from an experienced immigration attorney in order to evaluate whether filing under this ground is your best option, and if not, find your best solution.
According to the INA §216(c)(4), the Secretary of Homeland Security may remove the conditional basis of the permanent resident status of an immigrant if the immigrant demonstrates that extreme hardship would result if he/she is removed.
The statute is vague in its definition of what circumstances constitute “extreme hardship.” The general rule that follows is that the hardship the applicant faces must be significantly greater than the hardship experienced by other immigrants facing removal.
This means that every applicant’s petition is different and unique in itself, and undergoes examination on a case-by-case basis by the USCIS. Furthermore, the USCIS is granted the discretion whether to approve or deny the petitions under its strict scrutiny.
If you are considering to file a petition under this ground, you must remember that, in determining extreme hardship, the USCIS will consider circumstances occurring only during the period that you were admitted for permanent residence on a conditional basis.
Meaning, any evidence you supply to support your claim of hardship must be during your two-year conditional residency within the US. The USCIS may consider evidence outside this scope as supplemental, but cannot be the evidentiary basis on approving your petition. The following is a conclusive list of factors that may contribute to your case of exceptional hardship:
- Age, Health;
- Length of US residency;
- Family ties in US, custody of US-born children;
- Current political & economic conditions of returning country;
- You and derivatives’ assimilation to returning country (language, culture, family ties);
- Lack of necessary medical & educational resources;
- Inability to find employment with your skill-set in returning country;
- US-citizen family members are dependent on your income;
- Likelihood of facing persecution or discrimination upon removal.
Spousal abuse may occur in various forms: physical/emotional, violent/nonviolent, direct and indirect. If you are filing to remove the conditions on your US residency status under this waiver category, you will need to provide detailed evidence to support your claim. While this portion of the process may trigger discomfort and distress, it may be the information necessary to warrant the approval of visas for you and your affected children.
Unfortunately, it happens too often that a US citizen spouse may abuse his/her power in the relationship over the immigrant spouse and children. The abuser may gain control over you and the marriage primarily through threats of maintaining your lawful status. The following are common indicators of abuse within the marriage:
- Battery (physical violence e.g. punching, slapping, infliction of bodily injury);
- Threats to report you to USCIS;
- Threats to physically hurt you;
- Isolation/Disassociation from your friends and family;
- Disallowing you to leave the house, get employment;
- Withholding food and money;
- Name calling or public humiliation.
If you’ve been victimized by any of these actions by your spouse, it is important to: (1) seek help; and (2) try to document specific instances within your I-751 petition. Note dates, occurrences, the action that ensued, etc.
If you are proving to be a victim of battery and domestic violence, provide photos and medical/police reports, if applicable. Evidence that you have tried to seek help or shelter may be helpful to your application, too.
If you are proving nonviolent instances of abuse, affidavits from witnesses and social workers are beneficial to your waiver. The fact that others have witnessed or are aware of the harmful situation you are in is key to show that your claim of spousal abuse is authentic.
Once you have filed your I-751 petition to remove conditions on your permanent residency, the USCIS will mail you a letter stating its approval or denial. If denied, the letter will state the reasoning for the decision accompanied by a Notice to Appear (“NTA”) in the immigration court for removal proceedings. Once you are placed in deportation, remember you must attend your hearing. However, you should view this procedure as a chance for your case to be fully heard and given a second opportunity to get your conditional status removed.
Keep in mind, once your I-751 is denied, your lawful permanent residency is terminated. Therefore, you will no longer be authorized to work or travel, and your continued residency within the US is at high risk. For these reasons, it is necessary to be proactive in preparing and filing a polished, thorough petition to avoid denial and having your case put through removal proceedings.
Our firm has expert counsel who has aided clients in filing successful I-751 petitions!
Common Reasons for Denied I-751
- Insufficient evidence of a bona fide marriage: It is the petitioner’s burden of proof to establish that the marriage was entered in good faith and not for purposes of evading immigration law. The USCIS has discretion to deny your petition if there is not strong evidence to show the genuine marriage. Therefore, it is essential to assemble substantive supporting documents (photos, financial statements, affidavits, etc.) in order to support your claim.
- Improper filing: There is a strict timeframe in which you must file your application. If you file too early, your petition will be rejected. If you file too late, your petition will be denied and you will be placed in removal proceedings. In some instances, you may be able to turn in your petition prior to your case being transferred to immigration court, but you must provide good justification on why you filed late.
- You are unqualified: Underlying factors may bear reason to why your application is denied. Marriage fraud, immigration violations, and a criminal record that designates inadmissibility to the US are primary disqualifications of approving your petition. In some cases, petitioners are unaware that their divorce must be final prior to filing their I-751. As a result, not including the final divorce judgment as a supporting document may affect your applications approval or denial. It is beneficial to your case to retain an immigration attorney to assist you throughout the process.
What should I do next?
According to 8 CFR §216.4(d)(2), there are no administrative appeals for denied I-751s. However, you will be given the opportunity to present and renew your petition in front of the immigration judge when you attend your removal hearing.
Due to many immigration courts being backlogged, it could take months to years until your hearing is scheduled. In addition, during this waiting period, you cannot work or travel due to your US residency being expired. In light of these circumstances, you may file a second petition prior to when your hearing is scheduled. There is no limitation on how many times a person may file an I-751.
The general rule is that any successive petition must have new evidence that defeats the basis for any prior petition’s denial. If you are facing deportation on the grounds of an I-751 denial, seek assistance from an experienced immigration attorney to analyze your case and guide you through options on how you can present your eligibility to receive lawful permanent residency status.