Major RFE, Confused with Lawyer's Opinion

[MadeInChina 0]

First of all, sorry i dont have a timeline here and you might not be able to tell where I'm coming from unless I tell a little bit. I got here in the US in 2005 via a K1 visa petitioned by my USC ex-wife. I adjusted my status and got a conditional greencard that just expired this last December. Our marriage was a really bad one, and its been times when wife had threatened me with divorce over and over. She had filed at least three times and we kept making up to see if we could make it work.

I did applied to remove conditions on my residency last october and sent in all the documents I had in my possession. Although we had separated a few times through our marriage, I stillhe kept most of the bills I had in our home. I returned whenever she felt comfortable with seeing me around and left when she gets crazy again.

Now i got an RFE from USCIS requesting more evidence.

The evidence they needed included our divorce decree and a few other common documents like life insurance, lease documents, and so on.

My wife and I read the letter togther, and i was asking her about what and what document we had, and that's when she told me she had the divorce decree. That was a shock because i never knew we were divorced. I knew we had problems and knew she filed for divorce. While the divorce proceedings was going on, we still were intimate and were working on getting our marriage working again. I never had a divorce before, but shouldn't both parties be present? I went to the city building and found out we were really divorced and what I got from my wife, now ex-wife, was actually the divorce decree; all written in her handwriting and a Judge's stamp. I declared that wasn't fair because I needed to have at least been a part of it. Then they told me our State in the US is a 'No-Fault State', implying only her could go through the divorce without my presence in court.

With all this rage boiling in me, I dashed in an immigration attorney's office to see how that affects my case. We jointly filed my I-751 petition in October and divorce was finalized in November last year. Her opinion was really confusing. She admitted I'm in a bad situation, and gave two options. One is to send in all the requested documents omitting the divorce decree ( that means still claiming we're still married ), and the second is to cancel the present petition and send in one with a waiver as our divorce is finalized already.He says the first is risky but could get me my greencard within 2-3 months if they're convinced, and the waiver option could delay my greencard for 3 to 4 years. I don't want to be kept hanging for that long, and thought anyone here could give some advice.

[youtube 0]

You should be truthful with USCIS or you will definitely be denied. You mentioned you they are asking for divorce decree. How can you not present it?

Second something is wrong with your divorce decree. Even though you state is no fault, you had to been served paper and had to sign decree.

I suspect the papers are false. I never heard of divorce decree written in your ex-wife hand writing and signed by judge.

Does your attorney believe the divorce decree is real?

If she is crazy, this decree is fake. You can verify it also by taking it to the court where it was filed and see if the case number is real or not.

That's where I would start

good luck

[MadeInChina 0]

Thanks for the prompt response. I was served a paper telling me about the divorce. But like I said, my ex-wife has threatened me a few times with divorce. The first time I got a letter of that sort and we made up, she told me she did that to see my reaction and that for no reason would she leave me in that manner. The content of the paper I was served was that I could contest if I had any problems with her request on the property and all that. She owned the property before I even got here, and I saw no reason why I would want that split with me. Again I didnt need any money or compensation from her, so I thought I could go on working out our differences. What I don't understand is that we still got very intimate all the while the divorce was finalized, and I didnt even know anything of that sort was happening.

Like I stated, i went to the city building to confirm if the marrage was really over, and they requested a case number. I gave them the copy of the paper I got from my ex-wife, and they told me that was the divorce decree. I asked why it was all in her handwriting, and was told that was how it comes. Even if they had to give me another copy, it was going to be exactly what I was had.

My attorney actually looked at the divorce decree and confirmed it was genuine.. I'm so confused and havent been myself since all this started.

Edited February 17, 2008 by MadeInChina

[diadromous mermaid 36]

First of all, sorry i dont have a timeline here and you might not be able to tell where I'm coming from unless I tell a little bit. I got here in the US in 2005 via a K1 visa petitioned by my USC ex-wife. I adjusted my status and got a conditional greencard that just expired this last December. Our marriage was a really bad one, and its been times when wife had threatened me with divorce over and over. She had filed at least three times and we kept making up to see if we could make it work.

I did applied to remove conditions on my residency last october and sent in all the documents I had in my possession. Although we had separated a few times through our marriage, I stillhe kept most of the bills I had in our home. I returned whenever she felt comfortable with seeing me around and left when she gets crazy again.

Now i got an RFE from USCIS requesting more evidence.

The evidence they needed included our divorce decree and a few other common documents like life insurance, lease documents, and so on.

My wife and I read the letter togther, and i was asking her about what and what document we had, and that's when she told me she had the divorce decree. That was a shock because i never knew we were divorced. I knew we had problems and knew she filed for divorce. While the divorce proceedings was going on, we still were intimate and were working on getting our marriage working again. I never had a divorce before, but shouldn't both parties be present? I went to the city building and found out we were really divorced and what I got from my wife, now ex-wife, was actually the divorce decree; all written in her handwriting and a Judge's stamp. I declared that wasn't fair because I needed to have at least been a part of it. Then they told me our State in the US is a 'No-Fault State', implying only her could go through the divorce without my presence in court.

With all this rage boiling in me, I dashed in an immigration attorney's office to see how that affects my case. We jointly filed my I-751 petition in October and divorce was finalized in November last year. Her opinion was really confusing. She admitted I'm in a bad situation, and gave two options. One is to send in all the requested documents omitting the divorce decree ( that means still claiming we're still married ), and the second is to cancel the present petition and send in one with a waiver as our divorce is finalized already.He says the first is risky but could get me my greencard within 2-3 months if they're convinced, and the waiver option could delay my greencard for 3 to 4 years. I don't want to be kept hanging for that long, and thought anyone here could give some advice.

Well the statutes state that USCIS cannot adjudicate an application that was filed jointly by an alien and a USC spouse if the parties have since divorced. Once USCIS learns this, they will deny that application and you would be placed out of status. You should question this attorney you have consulted. What he or she is suggesting (scenario one) is against the regulations stipulated in the INA. I wouldn't trust this person to handle your case. Typically when a divorce occurs after the couple has filed a joint application, the alien should withdraw the pending application and replace it with a waiver. I suppose you could simply provide the evidence requested in the RFE, but as a precaution, I would also include a new I-751 form, indicating that you are replacing the former with this waiver.

[MadeInChina 0]

Well the statutes state that USCIS cannot adjudicate an application that was filed jointly by an alien and a USC spouse if the parties have since divorced. Once USCIS learns this, they will deny that application and you would be placed out of status. You should question this attorney you have consulted. What he or she is suggesting (scenario one) is against the regulations stipulated in the INA. I wouldn't trust this person to handle your case. Typically when a divorce occurs after the couple has filed a joint application, the alien should withdraw the pending application and replace it with a waiver. I suppose you could simply provide the evidence requested in the RFE, but as a precaution, I would also include a new I-751 form, indicating that you are replacing the former with this waiver.

Thanks for ur contribution. I was beginning to think everyone abandoned my case because I refreshed this page every second, and the views were growing and no one contributed.

I plan on meeting with 2 other attornies tommorow and hopefully I'll get some information I'm comfortable with. As regards sending in a waiver with the RFE, doesn't that mean a new application fee and fingerprinting fee? I mean, I don't mind paying those, I just wanted to know if its needed or not.

Once again, I appreciate your contribution..

[diadromous mermaid 36]

Well the statutes state that USCIS cannot adjudicate an application that was filed jointly by an alien and a USC spouse if the parties have since divorced. Once USCIS learns this, they will deny that application and you would be placed out of status. You should question this attorney you have consulted. What he or she is suggesting (scenario one) is against the regulations stipulated in the INA. I wouldn't trust this person to handle your case. Typically when a divorce occurs after the couple has filed a joint application, the alien should withdraw the pending application and replace it with a waiver. I suppose you could simply provide the evidence requested in the RFE, but as a precaution, I would also include a new I-751 form, indicating that you are replacing the former with this waiver.

Thanks for ur contribution. I was beginning to think everyone abandoned my case because I refreshed this page every second, and the views were growing and no one contributed.

I plan on meeting with 2 other attornies tommorow and hopefully I'll get some information I'm comfortable with. As regards sending in a waiver with the RFE, doesn't that mean a new application fee and fingerprinting fee? I mean, I don't mind paying those, I just wanted to know if its needed or not.

Once again, I appreciate your contribution..

New fee, yes, but if it is not needed, it might not be used. I think it wise to err on the side of precaution. Right now, it looks as if you failed to declare your marriage has terminated and to preempt any further questions as to the legitimacy of your marriage and things of that sort by USCIS, I would think providing the waiver is the best route. Better to show you are aware and following the law, rather than to be told you should.

When meeting with the other attorneys, in order to determine if you feel you can rely on their guidance, you might simply pose a question to them.

"If a couple has submitted a joint application to remove conditions and subsequently divorces, while the case is still pending, does the alien have a responsibility to withdraw that application and replace it with a waiver or can the alien just let USCIS adjudicate the joint petition?" As far as I am concerned, there is only ONE correct answer to that question!

[MadeInChina 0]

New fee, yes, but if it is not needed, it might not be used. I think it wise to err on the side of precaution. Right now, it looks as if you failed to declare your marriage has terminated and to preempt any further questions as to the legitimacy of your marriage and things of that sort by USCIS, I would think providing the waiver is the best route. Better to show you are aware and following the law, rather than to be told you should.

When meeting with the other attorneys, in order to determine if you feel you can rely on their guidance, you might simply pose a question to them.

"If a couple has submitted a joint application to remove conditions and subsequently divorces, while the case is still pending, does the alien have a responsibility to withdraw that application and replace it with a waiver or can the alien just let USCIS adjudicate the joint petition?" As far as I am concerned, there is only ONE correct answer to that question!

Thank you so much for your advice. I'll be with these attornies tomorrow and possibly come up with a comfortable advice like yours. Thanks again

[Collie 122]

I believe that truth should always prevail. You submitted the application and didn't even know that you were divorced. If the decree does not have your signature, then you legitimately were oblivious to your marital status when you submitted your application. USCIS should take that into consideration and if I was in your position, I would send in a new petition with the waiver with an explanation of what has been going on. I don't believe that an immigration attorney will be able to help you any further than you can help yourself.

I am truly sorry that you are going through this and that your marriage didn't work out. Stay strong.