Separation/Almost to 10Yr GC

[GreenValley 0]

I am not sure if this is the forum to post my question, but if it isn't, I'm sure it will be moved!

So....

Sadly, my husband and I have agreed to separate, we are still living together, and have been sleeping in separate rooms since September 06’. He is still on his conditional GC, and will be approved (see no problems) in 4 months. We both entered the marriage faithfully, and after so much trying and effort, (even saw a marriage counselor), we both came to the agreement that it is just not working.

Since we are so close to lifting of conditions on his GC, we have decided to just live together for the remainder of the months left to file.

My question is can I file for separation, with the realization (so I’ve been told) it will go public, and hope it does not affect our case? Does Immigration get notified on these things? Yes, we will present our case as if there are no problems, and file for divorce after he get’s his GC, but I also want to protect myself financially.

Now, before I get the onslaught of responses “You are committing fraud”, I am aware of this (being separated, but presenting ourselves as being a happily married couple), but this really works for us, we know in our hearts we are better friends than a couple.

Any advice from someone who is knowledgeable in the area would be much appreciated.

[jsnearline 2]

Sorry to hear things aren't working out for your marriage.

I know you don't want to hear this, but VJ's rules prohibit members from encouraging immigration fraud, which is what your post seems to be very openly proposing. You have to keep in mind that the government can revoke green cards and citizenship at any time in the future if they find that you misrepresent anything. No matter how much you think it works for you, It's really not a good idea to lie to the government, even if you think they won't find out.

If there is truly no hope of saving your marriage, then why not get divorced first. Your soon to be ex husband can then choose the option for filing I-751 on his own by assertng that the marriage was entered in good faith but ended in divorce. You could provide a supporting statement to be included with his filing perhaps.

I'd recommend talking to an attorney about all of this.

Edited January 4, 2007 by jsnearline

[JenT 0]

Sorry to hear things aren't working out for your marriage.

I know you don't want to hear this, but VJ's rules prohibit members from encouraging immigration fraud, which is what your post seems to be very openly proposing. You have to keep in mind that the government can revoke green cards and citizenship at any time in the future if they find that you misrepresent anything. No matter how much you think it works for you, It's really not a good idea to lie to the government, even if you think they won't find out.

If there is truly no hope of saving your marriage, then why not get divorced first. Your soon to be ex husband can then choose the option for filing I-751 on his own by assertng that the marriage was entered in good faith but ended in divorce. You could provide a supporting statement to be included with his filing perhaps.

I'd recommend talking to an attorney about all of this.

Very good advice.

Jen

[zyggy 9]

USCIS rules are clear... if at any time you are seperated or divorced before the I-751 petition is approved, the alien must file a new I-751 petition on their own after the divorce is finalized...

I agree with the above posters, I'm sure after 2 years there is plenty of evidence that you both lived a shared life and the relationship was not entered into to evade US Immigration laws... If it is truly over, you should get a divorce and let your husband file to remove conditions on his own...

Edited January 4, 2007 by zyggy

[diadromous mermaid 36]

USCIS rules are clear... if at any time you are seperated or divorced before the I-751 petition is approved, the alien must file a new I-751 petition on their own after the divorce is finalized...

I agree with the above posters, I'm sure after 2 years there is plenty of evidence that you both lived a shared life and the relationship was not entered into to evade US Immigration laws... If it is truly over, you should get a divorce and let your husband file to remove conditions on his own...

Hmm. I am not sure I agree with the above comments. Certainly, I do NOT agree that the OP is intently or even accientally commiting immigration fraud! It is always wise to consult an immigration attorney in situations that are removed from the typical. This might be one such instance where a quick consult can clear up any confusion.

In my opinion, if anything, in a situation like this, there may be a procedural requirement that would involve later replacing the jointly filed I-751 application with an appropriate waiver, if and when the marriage is considered terminated in terms of immigration purposes. The question then is, "when is a marriage considered terminated"? From the information presented here, at this point, the marriage is still extant. That would not preclude a joint filing, unless there are certain state laws that define separation as terminal.

As far as my understanding is concerned, marriage is terminated when a divorce decree has been issued. What about when a divorce has been initiated? Not so in my opinion. Divorce process can be aborted, and the marriage is still intact. I suspect the immigration process would think the same at this stage, and the only instance where I can think (after adjustment of status) where immigration protocol requires that the marriage be sustaining would be at Naturalisation, and even then, a separation does not necessarily preclude an alien from availaing him or herself of expedited process. It is a discretionary call made by the AO as to whether termination of the marriage appear imminent that might prohibit Naturalisation in 3 years as opposed to the standard 5.

Separation does not prohibit the joint filing of an I-751, UNLESS the alien is located in a district/state where separation automatically leads to termination or divorce after a specificed period of time. In fact, according to a memo issued by NSC in March 2005, it clearly indicates that

if the petitioner and beneficiary are separated or have initiated divorce proceedings at the time the Form I-751 should be filed, the petitioner and beneficiary may still file a joint petition if the petitioner is willing to sign the Form I-751 petition. However, the NSC has indicated that if the petitioner is not willing to sign the joint petition, the beneficiary is not eligible to file the Form I-751 requesting a waiver of the joint filing requirement until the divorce is final unless abuse is the basis for such a filing. If none of the aforementioned factors are present, the beneficiary's conditional resident status may be terminated because he/she may be unable to file a timely Form I-751 and he/she may be placed in removal proceedings.

[jsnearline 2]

My problem with the original post was the OP's idea of misrepresenting the current state of their relationship to the government - "being separated, but presenting ourselves as being a happily married couple". I don't have a problem with a separated couple filing jointly to remove conditions, provided they are honest about their circumstances.

Edited January 4, 2007 by jsnearline