Removal of conditions through extreme hardship (I-751)

[bledgeway1 0]

I am currently in the process to have the conditions removed on my 2 year green card. The original filing method was spouse sponsored. However, the marriage broke down and we sat down with an immigration lawyer to discuss different options for filing the removal of conditions because a divorce was imminent. As we have a 5 year old daughter, I was told that filing using a hardship waiver/exemption was the best and most logical step. I filed 18 months ago. Two days ago (15th Spet 2018) I received a response citing insufficient evidence that the marriage was entered into in good faith and insufficient evidence that deportation would result in extreme hardship to myself or my child. 

In order to receive the conditional 2 year green card, we already had to submit evidence that the marriage was entered into in good faith, and we endured a stern and thorough interview process. Our problem is that we don't have a great deal of solid evidence to support this - we were married in a courthouse due to me having just finished college (we had been together 4 years prior to marriage) - we decided to put off the ceremony until we had the finances to include both families and do it as we wanted, so there is no picture/video evidence which would strengthen our case. We've also never had joint ownership of any house or a joint tenancy agreement on any apartment. This is due to me having no credit history in the US at the time. When we tried to buy a house together the mortgage company would only lend the money to purchase if I agreed and signed documents stating I had no ownership or equity in the house. In fact, getting financed on anything has been a constant stumbling block during my time here - nobody will finance me at a fair rate (I'm paying 13% interest on a car loan).....but this is another story.

The only "joint" things we have are a tax return we filed together. We also have copies of state licenses which show the same address - and my ex wife has me listed on a life insurance policy she took out through her old job. 

Regarding the lack of proof for extreme hardship - we have a court ordered consent judgement and joint stipulation. It outlines that we both have 50/50 custody of our daughter and neither parent has more rights than the other. We have a schedule whereby we each have her 3.5 days out of the week. All education, health and other decisions are made together. All finances and costs are split equally. We have documentation showing this. I don't understand how they can view deporting me as being anything other than extreme hardship. Psychologically it would break us both. I'm worried they view the court documents merely as an attempt by me to flout the law and they believe I'm nothing more than an absent father who supports financially from time to time - nothing could be further from the truth. All of the dealings between my ex-wife and myself are civil and amicable. The needs of our child are put first.

In their letter to me they do outline several additional ways to show extra evidence. Here are some which are relevant to my case:

- Potential effects of your deportation on your children and their dependence on your support, such as education, lack of familiarity with your home country, language issues, financial and health requirements
- Major disruption in your family life
- Potential psychological impact of deportation on yourself and your children

We are in the process of scheduling a therapist to interview our daughter and give a detailed professional assessment which we can then submit. As far as major disruption to family life goes, my life is based here. The 2 bed apartment I rent for my and my daughter, my car note, all other bills and commitments are all here.

If there is anybody who has constructive advice or has been in a similar situation I'd appreciate anything you think would help the situation. Is there something obvious that I'm overlooking?

Thanks for reading.

[pushbrk 12,910]

This is a complicated set of issues.  You may find good help here but I would suggest consulting a qualified immigration attorney that has specific experience with your set of circumstances.

[Ontarkie 14,234]

~~Moved to Effects of Major Family Changes, from IR1/CR1 P&P- As similar threads are discussed here.~~

[TBoneTX 45,333]

Sympathies, OP.  Yes, find an experienced attorney.

 

This is an example of how Wills, powers of attorney, and similar documents can be helpful evidence for proving good faith, throughout the immigration process.  Other couples might want to consider drafting these documents, which are even more crucial to have in "life."

[Villanelle 4,122]

OMG why did you file under hardship??? The attny you went to is clueless. FIND A NEW ATTNY or attempt to fix this yourself. You need to get divorced. File for divorce and try to request USCIS to change you from hardship to divorce waiver. They may or they may not. If they dont you need to refile/pay again under divorce. 

Very few people need to file under hardship. It is incredibly difficult to prove and you have to prove the marriage and the hardship. Filing under divorce you only need to prove the marriage. Post back if you need more help. 

[Waittrain 17]

On 9/21/2018 at 1:49 PM, Damara said:

OMG why did you file under hardship??? The attny you went to is clueless. FIND A NEW ATTNY or attempt to fix this yourself. You need to get divorced. File for divorce and try to request USCIS to change you from hardship to divorce waiver. They may or they may not. If they dont you need to refile/pay again under divorce. 

Very few people need to file under hardship. It is incredibly difficult to prove and you have to prove the marriage and the hardship. Filing under divorce you only need to prove the marriage. Post back if you need more help. 

I agree.

[bledgeway1 0]

On 9/21/2018 at 3:49 PM, Damara said:

OMG why did you file under hardship??? The attny you went to is clueless. FIND A NEW ATTNY or attempt to fix this yourself. You need to get divorced. File for divorce and try to request USCIS to change you from hardship to divorce waiver. They may or they may not. If they dont you need to refile/pay again under divorce. 

Very few people need to file under hardship. It is incredibly difficult to prove and you have to prove the marriage and the hardship. Filing under divorce you only need to prove the marriage. Post back if you need more help. 

Thanks for reply - already divorced, it was finalized in Feb 2017. 

 

I'm currently in process of finding out if sticking with current I-751 is viable....someone mentioned to me that even though I had applied to prove both marriage and hardship that evidence supporting only one of these claims would suffice. I'm double checking that though. If not, I'll be refiling the I-751 without filing for hardship part.

[Villanelle 4,122]

Ill try to be clearer.

 

Right now you submitted a waiver application with how many things checked? Just hardship?  Actually it doesnt matter- Ill explain them all...

You can check 1 or more boxes. Every box you check you have to prove to be approved.

For divorce check box- you need to prove final divorce and bonafide marriage

for abuse check box- abuse + bonafide marriage

hardship waiver-  hardship +bonafide.

 

Assuming you filed under JUST waiver- they sent you an RFE. You need to respond to the RFE with a letter (and additional proof of the marriage + divorce decree) and explain you checked off the wrong box on the form. That you are ASKING them to please change your 751 to divorce waiver and including the divorce. They can switch your 751 over and adjudicate it as a divorce waiver. (most likely). They will review your new evidence and divorce papers and either set you for an interview or approve you  w/o one.

They can also deny your request to switch waiver types. They switch them as a courtesy, so if you are rude in your letter or otherwise annoy them they can deny your request to switch and continue processing the hardship waiver. They will look at your RFE response (which wont have anything in it to help get the hardship approved) and then either deny you and send you to court or call you in for an interview (where you can ask again to be switched). If they still refuse to switch you- you will be denied and sent to court. You then have to PAY and refile a new 751 with divorce only checked + handle the court (probably need an attny).

 

Usually they will let you switch because its just a lot of paperwork and backlogging the courts just for you to circle around and end up with the divorce waiver. I have only heard of 3 or less cases where they said we wont switch this for you (and they had other things going on it seemed). So gather new bonafide evidences and prepare a letter. If you need help with wording please post so. It shouldnt be complicated, just a basic format, plain English, no legal terms needed. Just apologize and ask that they please switch you as you are divorced. 

[Going through 5,671]

I'm very surprised the lawyer you went to recommended you file a hardship waiver as opposed to going through the ROC with a divorce waiver.

 

Follow Damara's advice on requesting the waiver be switched.

 

Regarding insufficient evidence of entering the marriage in good faith:  You said you have only joint tax returns and the old insurance policy---what about joint utility bills, joint bank accounts, joint car payments, etc. before the marriage broke down? 

[Sandra G. 5,048]

On 9/21/2018 at 4:49 PM, Damara said:

OMG why did you file under hardship??? The attny you went to is clueless. FIND A NEW ATTNY or attempt to fix this yourself. You need to get divorced. File for divorce and try to request USCIS to change you from hardship to divorce waiver. They may or they may not. If they dont you need to refile/pay again under divorce. 

Very few people need to file under hardship. It is incredibly difficult to prove and you have to prove the marriage and the hardship. Filing under divorce you only need to prove the marriage. Post back if you need more help. 

 

I  agree with Damara, because he chose the option hardship you have to prove bonafide marriage and hardship. If you choose the option  "divorced" then you just have to prove the intent when entering into marriage. You will need to submit affidavits from family and friends (secondary evidence), and your attorney has to explain to   USCIS why you are using  secondary evidence instead primary evidence (joint bank account, lease agreement etc..). In case he insists to continue with hardship, the Supreme Court, in several decisions, stated that the Constitution protects the sanctity of the family. We have several favorable decisions about hardship.