I-751 and hardship problem

[MB08 0]

Hello everybody,

I would like to ask if anybody knows about the process regarding the removal of conditions (I-751)

My friend's married to a USC and she came to the US via a K-1 visa. Their marriage isn't going well and he told her he won't help her in the petition to remove the conditions on her greencard. She already got her 2-year greencard and it will expire by January 2009. She's looking at her options and saw that she would have to file on her own. She was told by Catholic Charities that since they are not divorced (she doesn't have enough time to get a divorce decree since they must be separated for one year first and they only got recently separated), her only options to remove the conditions on her greencard is to file for a waiver based on hardship (he isn't physically abusing her). She could go back to where she came from but she won't have a job (it is difficult to find a good job there) and she is helping out in the medical expenses of her brother who has cancer, which is the reason why she wanted to stay as long as she can legally.

Here are her questions:

1. Can she ask for an extension from the USCIS to have the period to remove her conditions extended? She is planning to file for divorce as her ground to remove the conditions since she was told that hardship is a weak basis and her petition can be denied.

2. What's the average length of time for the USCIS to respond to her petition of I-751 based on hardship? (state is South Carolina)

3. Just in case her petition gets denied, can she appeal the denial? How does she appeal it and to what agency?

4. We heard about appearing before the immigration judge? How does she get a chance to present her case before the immigration judge?

5. Just in case all her options are denied, what exactly is the process for deporting her? Will her husband who brought her here to the USA be responsible for paying her airplane fare back?

Thanks for any input/help

[Kathryn41 3,205]

Hello everybody,

I would like to ask if anybody knows about the process regarding the removal of conditions (I-751)

My friend's married to a USC and she came to the US via a K-1 visa. Their marriage isn't going well and he told her he won't help her in the petition to remove the conditions on her greencard. She already got her 2-year greencard and it will expire by January 2009. She's looking at her options and saw that she would have to file on her own. She was told by Catholic Charities that since they are not divorced (she doesn't have enough time to get a divorce decree since they must be separated for one year first and they only got recently separated), her only options to remove the conditions on her greencard is to file for a waiver based on hardship (he isn't physically abusing her). She could go back to where she came from but she won't have a job (it is difficult to find a good job there) and she is helping out in the medical expenses of her brother who has cancer, which is the reason why she wanted to stay as long as she can legally.

Here are her questions:

1. Can she ask for an extension from the USCIS to have the period to remove her conditions extended? She is planning to file for divorce as her ground to remove the conditions since she was told that hardship is a weak basis and her petition can be denied.

Basically, she should file by the time her status expires. She should get the divorce proceedings underway asap since her husband has already said that he will not support her application.

2. What's the average length of time for the USCIS to respond to her petition of I-751 based on hardship? (state is South Carolina)

South Carrolina applicaitons go to Vermont Service Center. Applications are taking approxinately 12 to 15 months or longer for normal approval without any sort of a waiver.

3. Just in case her petition gets denied, can she appeal the denial? How does she appeal it and to what agency? Cross that bridge when she comes to it - it is more likely if her evidence is strong that her case will be approved. Focus on working on getting it approved rather than planning on what to do if it isn't.

4. We heard about appearing before the immigration judge? How does she get a chance to present her case before the immigration judge? This is a last chance situation and it is much more likely she will never get to this situation. Work on completing the application and creating a strong case for approval - entered in a valid marriage, marriage broke down, getting divorced, - hardship is because divorce takes longer to get than there is time left on the green card and application must be made now; divorce likely to be approved before AOS is and then she is eligible to file for a divorced waiver.

5. Just in case all her options are denied, what exactly is the process for deporting her? Will her husband who brought her here to the USA be responsible for paying her airplane fare back?

Thanks for any input/help

Since fililng as a divorced individual is an acceptable option, but there isn't time to complete the divorce before her application needs to be submitted, she has a good excuse to argue for a hardship clause. If her marriage had broken down earlier and her divorce had been approved, then she would only be faced with proving she entered the marriage in good faith and providing the necessary evidence with the waiver request. Siince she is in the process of divorce but the length of time of separation is a requirement for the divorce, then her hardship is that she can't yet file as divorced due to the length of separation required by the State, otherwise she would be eligible to file under the divorce waiver.

If the divorce becomes finalized before her application is approved, she can then withdraw the application and re-apply with the proper waiver requested. Either way she should be able to apply for removal of conditions and obtain the necessary extension of her green card while it is being processed. Having a job here and supporting the medical expenses of her brother who is suffering from cancer and not having a job back in her home country sounds like good additional evidence to qualify for a hardship clause. She should definitely go for it, making sure she has sufficient evidence that she entered the marrriage in good faith - and make copies in case she needs to re-submit it again with the new waiver. She shouldn't be trying to plan what to do if it is denied - plan harder on making sure it is approved. Collect the evidence now while she has access to it and get affidavits from those who can verify the marriage was valid but just broke down.

Good luck to her.

Edited July 26, 2008 by Kathryn41

[MB08 0]

Thanks so much Kathryn.

She was so depressed upon hearing the advice to her (that she should not waste her efforts and just go back to where she came from once her greencard expires on January 09) that we are looking so far ahead. We're worried that she may be put to jail or something.

On her behalf, thank you very much. (She is wary of signing up on forums.) I will be giving her a copy of this and I will definitely be back for updates on her situation.

[Dakine 26]

Hello everybody,

I would like to ask if anybody knows about the process regarding the removal of conditions (I-751)

My friend's married to a USC and she came to the US via a K-1 visa. Their marriage isn't going well and he told her he won't help her in the petition to remove the conditions on her greencard. She already got her 2-year greencard and it will expire by January 2009. She's looking at her options and saw that she would have to file on her own. She was told by Catholic Charities that since they are not divorced (she doesn't have enough time to get a divorce decree since they must be separated for one year first and they only got recently separated), her only options to remove the conditions on her greencard is to file for a waiver based on hardship (he isn't physically abusing her). She could go back to where she came from but she won't have a job (it is difficult to find a good job there) and she is helping out in the medical expenses of her brother who has cancer, which is the reason why she wanted to stay as long as she can legally.

Here are her questions:

1. Can she ask for an extension from the USCIS to have the period to remove her conditions extended? She is planning to file for divorce as her ground to remove the conditions since she was told that hardship is a weak basis and her petition can be denied.

2. What's the average length of time for the USCIS to respond to her petition of I-751 based on hardship? (state is South Carolina)

3. Just in case her petition gets denied, can she appeal the denial? How does she appeal it and to what agency?

4. We heard about appearing before the immigration judge? How does she get a chance to present her case before the immigration judge?

5. Just in case all her options are denied, what exactly is the process for deporting her? Will her husband who brought her here to the USA be responsible for paying her airplane fare back?

Thanks for any input/help

Why does she have to wait a year seperated to divorce. Can't she go the Vegas or somewhere and get one quicker?

[diadromous mermaid 36]

Hello everybody,

I would like to ask if anybody knows about the process regarding the removal of conditions (I-751)

My friend's married to a USC and she came to the US via a K-1 visa. Their marriage isn't going well and he told her he won't help her in the petition to remove the conditions on her greencard. She already got her 2-year greencard and it will expire by January 2009. She's looking at her options and saw that she would have to file on her own. She was told by Catholic Charities that since they are not divorced (she doesn't have enough time to get a divorce decree since they must be separated for one year first and they only got recently separated), her only options to remove the conditions on her greencard is to file for a waiver based on hardship (he isn't physically abusing her). She could go back to where she came from but she won't have a job (it is difficult to find a good job there) and she is helping out in the medical expenses of her brother who has cancer, which is the reason why she wanted to stay as long as she can legally.

Here are her questions:

1. Can she ask for an extension from the USCIS to have the period to remove her conditions extended? She is planning to file for divorce as her ground to remove the conditions since she was told that hardship is a weak basis and her petition can be denied.

Basically, she should file by the time her status expires. She should get the divorce proceedings underway asap since her husband has already said that he will not support her application.

2. What's the average length of time for the USCIS to respond to her petition of I-751 based on hardship? (state is South Carolina)

South Carrolina applicaitons go to Vermont Service Center. Applications are taking approxinately 12 to 15 months or longer for normal approval without any sort of a waiver.

3. Just in case her petition gets denied, can she appeal the denial? How does she appeal it and to what agency? Cross that bridge when she comes to it - it is more likely if her evidence is strong that her case will be approved. Focus on working on getting it approved rather than planning on what to do if it isn't.

4. We heard about appearing before the immigration judge? How does she get a chance to present her case before the immigration judge? This is a last chance situation and it is much more likely she will never get to this situation. Work on completing the application and creating a strong case for approval - entered in a valid marriage, marriage broke down, getting divorced, - hardship is because divorce takes longer to get than there is time left on the green card and application must be made now; divorce likely to be approved before AOS is and then she is eligible to file for a divorced waiver.

5. Just in case all her options are denied, what exactly is the process for deporting her? Will her husband who brought her here to the USA be responsible for paying her airplane fare back?

Thanks for any input/help

Since fililng as a divorced individual is an acceptable option, but there isn't time to complete the divorce before her application needs to be submitted, she has a good excuse to argue for a hardship clause. If her marriage had broken down earlier and her divorce had been approved, then she would only be faced with proving she entered the marriage in good faith and providing the necessary evidence with the waiver request. Siince she is in the process of divorce but the length of time of separation is a requirement for the divorce, then her hardship is that she can't yet file as divorced due to the length of separation required by the State, otherwise she would be eligible to file under the divorce waiver.

If the divorce becomes finalized before her application is approved, she can then withdraw the application and re-apply with the proper waiver requested. Either way she should be able to apply for removal of conditions and obtain the necessary extension of her green card while it is being processed. Having a job here and supporting the medical expenses of her brother who is suffering from cancer and not having a job back in her home country sounds like good additional evidence to qualify for a hardship clause. She should definitely go for it, making sure she has sufficient evidence that she entered the marrriage in good faith - and make copies in case she needs to re-submit it again with the new waiver. She shouldn't be trying to plan what to do if it is denied - plan harder on making sure it is approved. Collect the evidence now while she has access to it and get affidavits from those who can verify the marriage was valid but just broke down.

Good luck to her.

This is not really accurate. When speaking of removing conditions using the "hardship" grounds, the hardship referred to is that which an alien would face if removed from the country because the alien fails to meet the Joint requirement of applying to remove conditions 90 days prior to the expiry with the USC spouse, and NOT hardship the aliens faces in removing conditions alone!

[Kathryn41 3,205]

No, perhaps not as strong as otherwise, however, it is certainly a path worth pursuing under the circumstances. Her hardship is accentuated by the fact of having to support her brother who is fighting cancer and that she cannot do so back in her home country - and she is facing hardship removing conditions because USCIS doesn't allow for the transition time between married and divorced that might happen when the I-751 falls due.

[diadromous mermaid 36]

No, perhaps not as strong as otherwise, however, it is certainly a path worth pursuing under the circumstances. Her hardship is accentuated by the fact of having to support her brother who is fighting cancer and that she cannot do so back in her home country - and she is facing hardship removing conditions because USCIS doesn't allow for the transition time between married and divorced that might happen when the I-751 falls due.

Kathryn,

Once again, I disagree and your recommendation is directing the alien to document a hardship which does not meet the INA's requirement. The thrust of any hardship claim would be extreme conditions an alien would face if the Service chose to remove her because she could not remove conditions alone and could not remove conditions with her USC sponsor. The crux is in the terminology

"hardship if removed".

For example, here....

How can I show that I will suffer extreme hardship if I have to go back to my

country of origin?One way to show you are eligible for an I-751 waiver is to show that you are afraid of what would happen

to you if you were returned to your country of origin. In order to establish your eligibility under this

provision, consider the following:

• In your personal declaration, explain what would happen to you if you had to return to your

country of origin. For example, if you have been a victim of domestic violence or sexual

assault, describe the physical and psychological consequences of the abuse you have suffered;

the impact of the loss of access to United States courts and criminal justice system; your

ongoing need for social, medical, mental health, or other supportive services; the existence of

laws, social practices, or customs in your country that would punish you or your children for

having been a victim of abuse, leaving the situation, or taking actions to stop the abuse; your

abuser’s ability to travel to the foreign country; the likelihood that the abuser’s family,

friends, or others would harm you.

• If there are other people who know about what would happen to you if you had to return to

your country of origin, you should present letters from these people.

From, www.nwirp.org/Documents/FillingAnI-751Waiver.pdf

[Kathryn41 3,205]

MB08 - you may want to take a look at this post and share it with your friend. Perhaps this is something that your friend and her husband can consider as well:

http://www.visajourney.com/forums/index.php?showtopic=141136

[MB08 0]

Haole, as a matter of fact, she was told that it's easy enough to be divorced if she would only go there. Her problem with that is that she can't afford the plane far to go there right now, she's is starting out on her own recently, supporting herself with a low-paying job and wouldn't have the means to work there (no finances/car/work/etc).

Thanks everybody for all the input.

[russian_armenian 4]

I might be wrong but...

Somehow I thought that "by hardship" CIS means "hardship to US citizen or GC holder" if the alien gets removed. In this case, if brother is US citizen and OP is supporting-it is hardship to US citizen brother if she is not able to support due to deportation/removal. But if brother is not US citizen or legal PR-CIS does not care (his native country should care about the situation). I know that some hardship cases get approved if parents/spouses/kids are citizens and alien is supporting them or they have poor health and might break down (with doctors testimony) if their beloved relative alien is removed.

One point, I am not sure about is OP is a conditional PR also and if the rules applies to her. What OP writes, removing her from US will bring hardship to HERSELF. If CIS accept this rule, most I-751 filer can claim hardship due to job, social contact, etc. (obviously, it is hard to get a good job in some 3rd world country with 25-50% unemployment rate)

I remember some chapters in adjudicators mannual about hardship evidence (a few categories-strong evidence/weak evidence, etc) and rules but not details. I just dont have time to re-read it.

No, perhaps not as strong as otherwise, however, it is certainly a path worth pursuing under the circumstances. Her hardship is accentuated by the fact of having to support her brother who is fighting cancer and that she cannot do so back in her home country - and she is facing hardship removing conditions because USCIS doesn't allow for the transition time between married and divorced that might happen when the I-751 falls due.

Kathryn,

Once again, I disagree and your recommendation is directing the alien to document a hardship which does not meet the INA's requirement. The thrust of any hardship claim would be extreme conditions an alien would face if the Service chose to remove her because she could not remove conditions alone and could not remove conditions with her USC sponsor. The crux is in the terminology

"hardship if removed".

For example, here....

How can I show that I will suffer extreme hardship if I have to go back to my

country of origin?One way to show you are eligible for an I-751 waiver is to show that you are afraid of what would happen

to you if you were returned to your country of origin. In order to establish your eligibility under this

provision, consider the following:

• In your personal declaration, explain what would happen to you if you had to return to your

country of origin. For example, if you have been a victim of domestic violence or sexual

assault, describe the physical and psychological consequences of the abuse you have suffered;

the impact of the loss of access to United States courts and criminal justice system; your

ongoing need for social, medical, mental health, or other supportive services; the existence of

laws, social practices, or customs in your country that would punish you or your children for

having been a victim of abuse, leaving the situation, or taking actions to stop the abuse; your

abuser’s ability to travel to the foreign country; the likelihood that the abuser’s family,

friends, or others would harm you.

• If there are other people who know about what would happen to you if you had to return to

your country of origin, you should present letters from these people.

From, www.nwirp.org/Documents/FillingAnI-751Waiver.pdf