Divorce and Green Card Issue

[van80 1]

My now ex-husband and I have filed for a divorce for us because the marriage did not work out between us. It's been four months now and we haven't received our divorce decree yet. So now I am left to petition the waiver myself. I do not have the decree in hand yet and my date to lift conditions is due by Mar 09. What do I do if I don't have the official divorce papers yet and the date on my conditions is nearing? Will it be okay to waiver now even without the decree in hand or do I have to wait for my decree despite the chance of it being received after my removal of conditions due date Mar 09?

Please advise ...

Thank you!

[Old Dominion 26]

My now ex-husband and I have filed for a divorce for us because the marriage did not work out between us. It's been four months now and we haven't received our divorce decree yet. So now I am left to petition the waiver myself. I do not have the decree in hand yet and my date to lift conditions is due by Mar 09. What do I do if I don't have the official divorce papers yet and the date on my conditions is nearing? Will it be okay to waiver now even without the decree in hand or do I have to wait for my decree despite the chance of it being received after my removal of conditions due date Mar 09?

Please advise ...

Thank you!

The best thing to do is to file on schedule with or without the actual decree. I don't know Georgia divorce procedures, but certainly there is already some agreement that both of you have signed and had notarized...a financial settlement or something like that. If not, get a certified copy of whatever has been filed in court. It may slow things down a bit, but at least you can get the process started within the time allowed by USCIS

[diadromous mermaid 36]

This *might* work, but it's not really protocol.

Read this for a memo issued by NSC on preferred procedure:

http://www.immigration.com/newsletter1/nsconi751.pdf

My now ex-husband and I have filed for a divorce for us because the marriage did not work out between us. It's been four months now and we haven't received our divorce decree yet. So now I am left to petition the waiver myself. I do not have the decree in hand yet and my date to lift conditions is due by Mar 09. What do I do if I don't have the official divorce papers yet and the date on my conditions is nearing? Will it be okay to waiver now even without the decree in hand or do I have to wait for my decree despite the chance of it being received after my removal of conditions due date Mar 09?

Please advise ...

Thank you!

The best thing to do is to file on schedule with or without the actual decree. I don't know Georgia divorce procedures, but certainly there is already some agreement that both of you have signed and had notarized...a financial settlement or something like that. If not, get a certified copy of whatever has been filed in court. It may slow things down a bit, but at least you can get the process started within the time allowed by USCIS

[rika60607 215]

Wasn't there also a memo stating that 60 days late filing window is available for removal of conditions IF there is a serious reason for the delay?

So you may be able to file in May'09 if you don't have divorce decree in March. However it is up to them to accept your late petition or not...

[diadromous mermaid 36]

If the OP follows the recommended protocol as outlined in the link I provided., the Service will be on notice that the alien has reasonable cause for the delay.

Wasn't there also a memo stating that 60 days late filing window is available for removal of conditions IF there is a serious reason for the delay?

So you may be able to file in May'09 if you don't have divorce decree in March. However it is up to them to accept your late petition or not...

[rika60607 215]

"An alien’s status may be terminated because they are unable to file a timely Form I-751, or they may be placed in removal proceedings."

Diaddie, does this mean there are three possibilities?

1) Status terminated

2) CPR placed in removal proceedings

3) None of the above happens?

[diadromous mermaid 36]

An alien can file after that date, so long as removal proceedings have not already commenced. The Service's acceptance of an untimely filed petition is based upon the alien showing good cause for the late filing. In other words, he or she must not be at fault for the untimely filed application.

2) Period for filing petition.-

(A,) 90-day period before second anniversary.-Except as provided in subparagraph (B,), the petition under subsection ©(1)(A,) must be filed during the 90-day period before the second anniversary of the alien's obtaining the status of lawful admission for permanent residence.

(B,) Date petitions for good cause.-Such a petition may be considered if filed after such date, but only if the alien establishes to the satisfaction of the Attorney General good cause and extenuating circumstances for failure to file the petition during the period described in subparagraph (A,).

(C,) Filing of petitions during removal.-In the case of an alien who is the subject of removal hearings as a result of failure to file a petition on a timely basis in accordance with subparagraph (A,), the Attorney General may stay such removal proceedings against an alien pending the filing of the petition under subparagraph (B,).

From INA: ACT 216 - CONDITIONAL PERMANENT RESIDENT STATUS FOR CERTAIN ALIEN SPOUSES AND SONS AND DAUGHTERS

Sec. 216. [8 U.S.C. 1186a]

"An alien’s status may be terminated because they are unable to file a timely Form I-751, or they may be placed in removal proceedings."

Diaddie, does this mean there are three possibilities?

1) Status terminated

2) CPR placed in removal proceedings

3) None of the above happens?

Edited December 6, 2008 by diadromous mermaid

[diadromous mermaid 36]

If an alien can show good cause for an untimely submission, the submission will be accepted. If the alien is at fault for the late submission, it may be denied. At which time the alien would be placed in removal proceedings and have another chance at removing conditions before the IJ. Essentially, the removal proceedings would need to be stayed so that the merits of his conditions removal may be reviewed.

If the removal proceedings have commenced, because the alien still does not have a divorce decree in order to self-petition, then once again the removal must be stayed, and the alien would have one last chance at demonstrating the bonafides of the marriage before the IJ.

What constitutes fault in an untimely submission? I believe no submission prior to removal proceedings being initiated, or the alien is the petitioner in a divorce action that is commenced so close to the deadline for submission.

"An alien’s status may be terminated because they are unable to file a timely Form I-751, or they may be placed in removal proceedings."

Diaddie, does this mean there are three possibilities?

1) Status terminated

2) CPR placed in removal proceedings

3) None of the above happens?

[rika60607 215]

That's pretty interesting. Thank you!

Removal proceedings could initiate right after divorce, right?

And since many states require that prior to divorce a long period of separation must occur - it may not be necessarily alien petitioner's fault that divorce was initiated too close to the 90 day window...

If an alien can show good cause for an untimely submission, the submission will be accepted. If the alien is at fault for the late submission, it may be denied. At which time the alien would be placed in removal proceedings and have another chance at removing conditions before the IJ. Essentially, the removal proceedings would need to be stayed so that the merits of his conditions removal may be reviewed.

If the removal proceedings have commenced, because the alien still does not have a divorce decree in order to self-petition, then once again the removal must be stayed, and the alien would have one last chance at demonstrating the bonafides of the marriage before the IJ.

What constitutes fault in an untimely submission? I believe no submission prior to removal proceedings being initiated, or the alien is the petitioner in a divorce action that is commenced so close to the deadline for submission.

[diadromous mermaid 36]

Well, yes, that is true, but a petitioner in a divorce action determines the timing, while the respondent has no control over timing. If the alien is a respondent in a normal divorce, where no foul-play is alleged but the parties have irreconcibale differences, the alien might not be at fault for an untimely submission of the I-751 waiver.

That's pretty interesting. Thank you!

Removal proceedings could initiate right after divorce, right?

And since many states require that prior to divorce a long period of separation must occur - it may not be necessarily alien petitioner's fault that divorce was initiated too close to the 90 day window...

If an alien can show good cause for an untimely submission, the submission will be accepted. If the alien is at fault for the late submission, it may be denied. At which time the alien would be placed in removal proceedings and have another chance at removing conditions before the IJ. Essentially, the removal proceedings would need to be stayed so that the merits of his conditions removal may be reviewed.

If the removal proceedings have commenced, because the alien still does not have a divorce decree in order to self-petition, then once again the removal must be stayed, and the alien would have one last chance at demonstrating the bonafides of the marriage before the IJ.

What constitutes fault in an untimely submission? I believe no submission prior to removal proceedings being initiated, or the alien is the petitioner in a divorce action that is commenced so close to the deadline for submission.

[mooninlove 1]

With my case, I filed way beyond the 90 day period because my divorce took longer that I thought. I let the USCIS know the reason behind the untimely filing of I-751 and when I received my decree, I filed my waiver and went through the normal processing of I-751.

[Colada 0]

have you finalized the divorce? It is not enough that you just file the initialize paper for divorce, there is additional paper work that you have to file to get a divorce decree. Is there a family law clinic at the court that you can go to and ask them what is going on.

[van80 1]

Thank you all for the advice!

One question for mooninlove:

In what way or how did you inform the USCIS of your untimely filing of I-175 after you had went beyond the 90 day period? I think I will be in the same position as you as my divorce papers are not even finalized yet.

With my case, I filed way beyond the 90 day period because my divorce took longer that I thought. I let the USCIS know the reason behind the untimely filing of I-751 and when I received my decree, I filed my waiver and went through the normal processing of I-751.

[diadromous mermaid 36]

google Yates Memo NSC 2005. That will give you the way you apprise the service center that you are not able to timely-file.

Thank you all for the advice!

One question for mooninlove:

In what way or how did you inform the USCIS of your untimely filing of I-175 after you had went beyond the 90 day period? I think I will be in the same position as you as my divorce papers are not even finalized yet.

With my case, I filed way beyond the 90 day period because my divorce took longer that I thought. I let the USCIS know the reason behind the untimely filing of I-751 and when I received my decree, I filed my waiver and went through the normal processing of I-751.

[goldie 0]

I am in the same position, I need to be separated 1 year prior to divorce. My greencard expires on 22 of february next year. My 1 year separation ends mid june next year. All I thought I could do by now is to send the USCIS already now my petition including a letter explaining my situation and a copy of my separation papers from court. I guess it will be denied and sent back to me, but I tought I try. I do not know what I will do after my greencard expires, because I will be illegal in the country by then and not able to work. I hope I will have the time to get my divocre decree before I will be placed onder removal, but still i beleive it is NOT my fault beeing not able to file a timely petition, because we got a 1 year separation before divorce. All this USCIS laws do not make sense to me at all!

If anybody has a advise or idea in this case, I would appreciate it much.. or anybody who went through the same problems.....