Remove GC conditions after CA Divorce? Legal Separation?

[harry_pothead 0]

I am a US citizen and have told my foreign wife that I want a divorce. Her conditional green card expires in January of 2011 (10 months from now).

The marriage was 100% in good faith, but unfortunately no house or kids, which I've read are the strongest tokens of proof of the marriage being done in good faith. We do have a lease with both our names on it, a "family plan" cellphone bill, joint tax returns, and plenty of photo evidence. We have no joint bank account but a lot of transfers between our two accounts. I feel we could get a divorce and convince the USCIS it was done in good faith, especially since I would sign any needed papers as well as be present at the interview (assuming there is one) and testify to the fact our marriage was legit.

But, my foreign wife is not accepting any of that. It's like the words come out of my mouth and morph into little turds that just float away -- and then she goes back to begging me to stay in the marriage so that she can get her 10 year green card. And maybe she's right. Maybe my idealistic view of the USCIS as being "fair" is unrealistic. Maybe it's just a gamble leaving her future up to whatever the USCIS officer that receives the waiver request had for breakfast that day. Well, it would be nice to see some survey results -- has anyone here removed conditions from their green card after divorce? (where US citizen was willing to sign forms) How bad was it?

But, one more twist ...... since we are in California, it looks like there is a third option -- Legal Separation. In this case we are still technically married, but "legally separated". That way we can essentially go through with the "divorce" which would satisfy me, yet stay married "in name" which would cause the USCIS to remove conditions from her green card without any need for a waiver or any other hassle or chance of denial.

The USCIS sees "Legally Separated" as "Married", so they shouldn't require any waiver with the green card conversion, right?

Anyone here removed green card conditions while legally separated? How easy was it?

[v333k 59]

I am a US citizen and have told my foreign wife that I want a divorce. Her conditional green card expires in January of 2011 (10 months from now).

The marriage was 100% in good faith, but unfortunately no house or kids, which I've read are the strongest tokens of proof of the marriage being done in good faith. We do have a lease with both our names on it, a "family plan" cellphone bill, joint tax returns, and plenty of photo evidence. We have no joint bank account but a lot of transfers between our two accounts. I feel we could get a divorce and convince the USCIS it was done in good faith, especially since I would sign any needed papers as well as be present at the interview (assuming there is one) and testify to the fact our marriage was legit.

But, my foreign wife is not accepting any of that. It's like the words come out of my mouth and morph into little turds that just float away -- and then she goes back to begging me to stay in the marriage so that she can get her 10 year green card. And maybe she's right. Maybe my idealistic view of the USCIS as being "fair" is unrealistic. Maybe it's just a gamble leaving her future up to whatever the USCIS officer that receives the waiver request had for breakfast that day. Well, it would be nice to see some survey results -- has anyone here removed conditions from their green card after divorce? (where US citizen was willing to sign forms) How bad was it?

But, one more twist ...... since we are in California, it looks like there is a third option -- Legal Separation. In this case we are still technically married, but "legally separated". That way we can essentially go through with the "divorce" which would satisfy me, yet stay married "in name" which would cause the USCIS to remove conditions from her green card without any need for a waiver or any other hassle or chance of denial.

The USCIS sees "Legally Separated" as "Married", so they shouldn't require any waiver with the green card conversion, right?

Anyone here removed green card conditions while legally separated? How easy was it?

is it possible for you to consult with an immigration lawyer?

But to answer you question, it has been done and if you go through the threads, you will see several people who got divorced even with the USC spouse not willing to provide any support and still got approved. Of course, these are individual and very different cases, so it is not guaranteed.

If you don't mind the immigration lawyer, I think that will be your best bet.

[harry_pothead 0]

is it possible for you to consult with an immigration lawyer?

But to answer you question, it has been done and if you go through the threads, you will see several people who got divorced even with the USC spouse not willing to provide any support and still got approved. Of course, these are individual and very different cases, so it is not guaranteed.

If you don't mind the immigration lawyer, I think that will be your best bet.

Yes I was planning on making an appointment, but I thought I might try to get some feedback from people who have tried/done the same approach. Plus it's kind of urgent because we need to decide our future, currently things are in limbo.

I'd really like to hear from people who were legally separated and removed GC conditions. Hoping to hear that it was a "slam dunk", so I can try to convince my wife that it would be a safe move in terms of her green card status.

Thanks for your response!

[Lona.C. 16]

you might find some answers here http://www.visajourney.com/forums/index.php?showforum=127

[harry_pothead 0]

you might find some answers here http://www.visajourney.com/forums/index.php?showforum=127

Thanks! There were some helpful posts there.

Also I did some searching on the web and found some conflicting information from immigration attorneys. According to this blog entry, legal separation can constitute dissolution of marriage for immigration purposes:

Separation can mean either legal separation or physical separation. Physical separation i.e. spouses living apart, in general does not in itself constitute termination of the marriage for immigration purposes and a petition may not be denied merely because the couple cohabits separately. Legal separation, on the other hand, is a court order or a written agreement directing or authorizing the spouses to live separate and apart. Legal separation can constitute termination of marriage for immigration purposes and the USCIS may deny a green card in cases where the parties entered into a valid marriage, but have since obtained a legal separation prior to the final adjudication of the green-card.

Source: http://immigrationinfo.wordpress.com/2010/...gration-status/

and a more optimistic view stated by a different lawyer here:

Here's how a situation with a legal separation and conditional Green Card plays out: Since a legal separation doesn't effectively end the marriage, the couple are still married for immigration purposes. The non-U.S. citizen may still be able to get a permanent Green Card even though they are no longer living together. The exception to this policy occurs when the legal separation is brought in a country or jurisdiction where the couple is considered to be divorced after a certain amount of time has passed.

Source: http://divorce.lovetoknow.com/Legal_Separa...onal_Green_Card

As far as I know, California does not automatically convert legal separations into divorces, so I guess we'd be OK here.

Any thoughts or experiences?

[TracyTN 237]

This also: http://www.visajourney.com/forums/index.php?showtopic=220094

There is nothing that precludes your wife from getting her 10 year green card so long as both of you entered the marriage in good faith - even if you are divorced when she applies. Perhaps if she reads some of what is provided here and on USCIS' site, she'll feel better about it. Staying in an unhappy marriage just to appease USCIS is absurd.

[Brother Hesekiel 2,235]

According to what you stated, your wife will have NO PROBLEMS filing successfully for ROC without you. The documentation you have at hand is more than sufficient.

She can file 90 days before the 2nd anniversary of her GC, but her petition cannot be completed without a divorce decree in hand. If she submits the I-751 without the divorce decree, she'll receive a RFE. That's not a bad thing per se, as it allows her to buy time. If you get divorced earlier than that, she can file immediately. What the means is that she could file today, if you were divorced already. I still would wait until the 90-day window opens, but don't want to get into the reasons for this as it is non-relevant to your case right now.

You won't be present at any interview if your wife files without you. Therefore, I suggest you get a divorce ASAP; that way you can help her the most. If you stay married together or live apart, and file jointly, you are committing visa fraud, both of you.

Tell your wife she has nothing to worry about you. The 2-year GC has been introduced in order to sort out fraudsters. Since the marriage has been entered in good faith, and you can prove that you lived as a happily married together under one roof, she has nothing to worry about.

Disclaimer: the whole thing is a bit more complex, so I only wrote what I deemed makes sense given your specific case.

[sh18 3]

Thanks! There were some helpful posts there.

Also I did some searching on the web and found some conflicting information from immigration attorneys. According to this blog entry, legal separation can constitute dissolution of marriage for immigration purposes:

and a more optimistic view stated by a different lawyer here:

As far as I know, California does not automatically convert legal separations into divorces, so I guess we'd be OK here.

Any thoughts or experiences?

Btw, I think you're confusing one thing here. What you pasted is talking about someone who hasn't gotten their green card yet. Your wife already has one. She is already permanent resident with all the rights and obligations of a permanent resident. She can waive the condition on it without you after the divorce is final.

[harry_pothead 0]

Just Bob: Thank you so much for taking the time to write this. It echoes my sentiments exactly, and I am going to print this out and show this to her ASAP.

[harry_pothead 0]

This also: http://www.visajourney.com/forums/index.php?showtopic=220094

There is nothing that precludes your wife from getting her 10 year green card so long as both of you entered the marriage in good faith - even if you are divorced when she applies. Perhaps if she reads some of what is provided here and on USCIS' site, she'll feel better about it. Staying in an unhappy marriage just to appease USCIS is absurd.

Yes I agree, and absurd is putting it lightly .. I think Just Bob gave it the more appropriate label.

Thanks so much people for getting back to me. I think the appropriate path is pretty clear. This forum rocks, kudos to whoever set this up!

[harry_pothead 0]

But, one more twist ...... since we are in California, it looks like there is a third option -- Legal Separation. In this case we are still technically married, but "legally separated". That way we can essentially go through with the "divorce" which would satisfy me, yet stay married "in name" which would cause the USCIS to remove conditions from her green card without any need for a waiver or any other hassle or chance of denial.

The USCIS sees "Legally Separated" as "Married", so they shouldn't require any waiver with the green card conversion, right?

Anyone here removed green card conditions while legally separated? How easy was it?

Replying to myself here .. and an attempt to contribute back to the forum -- I spoke to an immigration attorney and this is what he told me:

"According to the law the way it is now, you either have to be living together as man and wife, or divorced. So if you are living together, you file together. If you are divorced, she would file separately. The whole memo came out about the timing of the divorce and whatever, so I don't think legal separation would do the trick for either of those situations. It wouldn't be helpful."

[lynn2000 0]

This also: http://www.visajourney.com/forums/index.php?showtopic=220094

There is nothing that precludes your wife from getting her 10 year green card so long as both of you entered the marriage in good faith - even if you are divorced when she applies. Perhaps if she reads some of what is provided here and on USCIS' site, she'll feel better about it. Staying in an unhappy marriage just to appease USCIS is absurd.

Actually I am in the same situation as this wife and have the same worries. We also entered the marriage in good faith and we have joint bank acount, joint tax return 2008, joint lease, joint auto insurance, utility bills, I have him as my cosigner of my student loan, I have his signature on a hospital paper for a big surgery I received (not sure how to get a copy from hospital), I have proof that we moved to a city from his hometown for me to attend school and then moved back to his hometown.... are these enough to prove the authenticity of marriage?

MOST IMPORTANT QUESTION: Does true marriage necessarily lead to approvement of removal conditional green card applied by a divorcee? Is it affected by what country I come from? my financial situation etc (at the moment I only have a part time job and try to make it full time)?

[TracyTN 237]

It sounds to me like you have a good basis to establish that the marriage was entered into in good faith. However, no one here can predict how a USCIS adjudicator will see your case, or what factors they take into account when deciding whether to approve or deny. The only thing you can do is provide what proof you have and be ready to either provide more if asked, or answer questions truthfully at the interview (if you have one).

[lynn2000 0]

It sounds to me like you have a good basis to establish that the marriage was entered into in good faith. However, no one here can predict how a USCIS adjudicator will see your case, or what factors they take into account when deciding whether to approve or deny. The only thing you can do is provide what proof you have and be ready to either provide more if asked, or answer questions truthfully at the interview (if you have one).

Thank you for your reply.

The real answer I am seeking for is if staying in marriage gets more credit or is more guaranteed to get approved than divorcee given both marriages were entered into in good faith.

Or perhaps I should rephrase my question as follow: Given the USCIS adjudicator DOES BELIEVE the divorcee entered the marriage in good faith and no fault and it is the other spouse who wants to divorce, the application still might be denied while applicant staying in the marriage will definitely get approved. Is it correct? Which means, for a divorced applicant, there is more risk? Requirements for divorced applicant are not necessary and sufficent condition to be get approved, in another words, even if you satisfy the requirements, they can still deny you without explanation? Very frustrated since I was advised by many ppl that it is very difficult for a divorced applicant to be approved.

[TracyTN 237]

Thank you for your reply.

The real answer I am seeking for is if staying in marriage gets more credit or is more guaranteed to get approved than divorcee given both marriages were entered into in good faith.

Or perhaps I should rephrase my question as follow: Given the USCIS adjudicator DOES BELIEVE the divorcee entered the marriage in good faith and no fault and it is the other spouse who wants to divorce, the application still might be denied while applicant staying in the marriage will definitely get approved. Is it correct? Which means, for a divorced applicant, there is more risk? Requirements for divorced applicant are not necessary and sufficent condition to be get approved, in another words, even if you satisfy the requirements, they can still deny you without explanation? Very frustrated since I was advised by many ppl that it is very difficult for a divorced applicant to be approved.

'Gets more credit'? Well, they are both valid reason for removing conditions (either jointly or with the caveat that the marriage has ended but was entered into in good faith).

In either case, the adjudicator must believe that the marriage - whether it is still ongoing or has ended - is a valid one. I suppose there is more risk for a divorced applicant in the sense that they may need more documentation of a valid marriage than someone still married. But divorced applicants are approved all the time - I don't see where it's THAT much riskier than applying jointly if all is as it seems.