divorce/Settlement on conditional GC

[MihaelaNYS 10]

Hi,

Happy New Year!!!

I have a question mainly for those that know from their own experience or have solid knowledge regarding this matter:

I am a conditional resident and in about 5 months I have to apply for removal of condition (I-751).

Right now, I am in a very nasty divorce (I filed for it based on abuse, and ofcourse, is contested).

The divorce lawyers look for an agreement/settlement between us in order for me to obtain the divorce.

Is this settlement (or its terms) going to affect my future success in Removing the Temporary Condition ? (Will USCIS only going to ask for the divorce decree ???)

Thank you

Mihaela

[YuAndDan 153]

Yes it does affect removal of conditions.

You can file I-751 as soon as divorce is final, and will need to provide evidence that marriage was in good faith, and can file with a waiver of the joint filing requirement.

If divorce is not final at time tha I-751 needs to be filed, then you will need to file the I-751 jointly with spouse.

Some searching resulted in this:

Two ways to show that a marriage was entered into in good faith are proving that the couple had a child together and producing evidence that the couple owned property jointly.

http://www.divorcenet.com/states/new_jerse...ion_and_divorce

Filing if the Couple is Separated

More troublesome is if the couple is still married, but separated or otherwise not getting along. With limited exception, as long as the couple is legally married, it is necessary to have a joint petition. Thus, troubled marriages often need either to be reconciled or terminated in order to file the I-751. As explained below, the I-751 can be filed by divorced individuals, and may be approved, as long as there is sufficient evidence that the marriage was genuine when initially entered into. It is more difficult to satisfy the USCIS in such scenarios, however.

Joint-Filing Waived in Limited Cases

There are two situations in which a person who is still legally married can file the I-751 without the spouse. The first is if the person entered into a marriage in good faith, but has been battered or subjected to extreme cruelty by the petitioning spouse. The second is if termination of permanent resident status and removal from the U.S. would result in extreme hardship to the foreign national. Extreme hardship is a high standard and can be based only upon conditions that arose after the conditional residency was acquired.

Filing after Divorce or Annulment

A conditional permanent resident with a marriage that was terminated due to divorce or annulment must file for a waiver of the requirement of the joint filing of Form I-751. To obtain an approval of the I-751 and be granted unconditional lawful permanent resident status, the conditional permanent resident spouse must be able to show that s/he entered into the marriage in good faith.

The person seeking permanent resident status should expect to undergo an interview at the USCIS about the marriage. The USCIS will closely scrutinize whether the marriage was bona fide at its inception. The USCIS will review the divorce decree and complaint for matters that may be reflective of whether the marriage was entered into purely for immigration purposes or to perpetrate fraud against the United States citizen spouse or the USCIS.

http://www.murthy.com/news/n_remcon.html

[diadromous mermaid 36]

Not necessarily. But in order to be able to answer, it would depend on what is articulated in the settlement agreement. You will need to supply the decree, or judgment of divorce, with the waiver form I-751. Whatever is included in that judgment would of course been seen by USCIS.

Hi,

Happy New Year!!!

I have a question mainly for those that know from their own experience or have solid knowledge regarding this matter:

I am a conditional resident and in about 5 months I have to apply for removal of condition (I-751).

Right now, I am in a very nasty divorce (I filed for it based on abuse, and ofcourse, is contested).

The divorce lawyers look for an agreement/settlement between us in order for me to obtain the divorce.

Is this settlement (or its terms) going to affect my future success in Removing the Temporary Condition ? (Will USCIS only going to ask for the divorce decree ???)

Thank you

Mihaela

[camifree 2]

In my case, I filed for the removal before the divorce takes place (in MD divorces can only be filed 12 months after separation, and I filed for removal 5 months after I left my husband). Now, I got my biometrics done and my passport was stamped with a 1 year provisional "GC" since I received no letter.

We'll file for divorce in May. Would that jeopardize my status? If it does, well, it does... I'm not going to die because of it; I would just like to be ready and prepare my next steps to move on with my life.

[diadromous mermaid 36]

Only if the divorce is finalised BEFORE the joint I-751 is adjudicated.

In my case, I filed for the removal before the divorce takes place (in MD divorces can only be filed 12 months after separation, and I filed for removal 5 months after I left my husband). Now, I got my biometrics done and my passport was stamped with a 1 year provisional "GC" since I received no letter.

We'll file for divorce in May. Would that jeopardize my status? If it does, well, it does... I'm not going to die because of it; I would just like to be ready and prepare my next steps to move on with my life.

[MihaelaNYS 10]

My husband would agree (according to his lawyer) with the divorce only if I change the ground form cruel and inhuman treatment to constructive abandonment and also to mention in the settlement that I will hold him harmless as any support obligation he may have pursuant to this document (the Affidavit of Support).

[diadromous mermaid 36]

Not possible, as to the holding him harmless to an obligation he has entered into with USCIS.

My husband would agree (according to his lawyer) with the divorce only if I change the ground form cruel and inhuman treatment to constructive abandonment and also to mention in the settlement that I will hold him harmless as any support obligation he may have pursuant to this document (the Affidavit of Support).

[Old Dominion 26]

Not possible, as to the holding him harmless to an obligation he has entered into with USCIS.

My husband would agree (according to his lawyer) with the divorce only if I change the ground form cruel and inhuman treatment to constructive abandonment and also to mention in the settlement that I will hold him harmless as any support obligation he may have pursuant to this document (the Affidavit of Support).

The "hold harmless" phrase is not a problem but it would be unenforceable. Your lawyer can come up with some phrase showing your intent to be self supporting....

[diadromous mermaid 36]

Right. If the intent of this clause is to release the US sponsor from the obligation under the Affidavit of Support, she can't, since she is not a party to that contract (but rather a potential third party beneficiary of the contract). If the intent is to assure the US sponsor that she will not make a claim for support, using the extant pledge that the USC has made with USCIS as a grounds, then her attorney could stipulate that she will not seek any additional spousal support as a result of the obligation the USC has made with USCIS. But to the contract itself, if she were to draw benefits (to wit, federal means tested benefits) then the agency that were to provide them could and would have the right to seek recompense from the USC.

Not possible, as to the holding him harmless to an obligation he has entered into with USCIS.

My husband would agree (according to his lawyer) with the divorce only if I change the ground form cruel and inhuman treatment to constructive abandonment and also to mention in the settlement that I will hold him harmless as any support obligation he may have pursuant to this document (the Affidavit of Support).

The "hold harmless" phrase is not a problem but it would be unenforceable. Your lawyer can come up with some phrase showing your intent to be self supporting....

Edited January 6, 2009 by diadromous mermaid

[MihaelaNYS 10]

<< But to the contract itself, if she were to draw benefits (to wit, federal means tested benefits) then the agency that were to provide them could and would have the right to seek recompense from the USC.>>...<<The "hold harmless" phrase is not a problem but it would be unenforceable. >>

I am still a little bit confuse (language barrier, sorry),

let's see if I got it right: even if I sign it, that would not affect the I-864.

[desert_fox 32]

<< But to the contract itself, if she were to draw benefits (to wit, federal means tested benefits) then the agency that were to provide them could and would have the right to seek recompense from the USC.>>...<<The "hold harmless" phrase is not a problem but it would be unenforceable. >>

I am still a little bit confuse (language barrier, sorry),

let's see if I got it right: even if I sign it, that would not affect the I-864.

The agreement is between your husband and the US Govt. It cannot be changed by some state court, or by separate agreement among yourselves. If the US Govt has a claim, they will go after your husband, and could care less what some other agreement sez.

You husband could collect from you under your separate agreement.

[camifree 2]

Only if the divorce is finalised BEFORE the joint I-751 is adjudicated.

In my case, I filed for the removal before the divorce takes place (in MD divorces can only be filed 12 months after separation, and I filed for removal 5 months after I left my husband). Now, I got my biometrics done and my passport was stamped with a 1 year provisional "GC" since I received no letter.

We'll file for divorce in May. Would that jeopardize my status? If it does, well, it does... I'm not going to die because of it; I would just like to be ready and prepare my next steps to move on with my life.

Hi Mermaid, thank you for responding... but I don't understand Could you explain that with more details? Wasn't it already adjudicated if I got my passport stamped while I receive the new card?

Thanks again...

[diadromous mermaid 36]

I don't know what you have stamped in your passport, but the letter to which you refer is the NOA extending your privileges as a PR until the application is approved. If the stamp in your passport is what I think it is then it is simply an extension of the validity date of the GC until the I-751 is decided.

Only if the divorce is finalised BEFORE the joint I-751 is adjudicated.

In my case, I filed for the removal before the divorce takes place (in MD divorces can only be filed 12 months after separation, and I filed for removal 5 months after I left my husband). Now, I got my biometrics done and my passport was stamped with a 1 year provisional "GC" since I received no letter.

We'll file for divorce in May. Would that jeopardize my status? If it does, well, it does... I'm not going to die because of it; I would just like to be ready and prepare my next steps to move on with my life.

Hi Mermaid, thank you for responding... but I don't understand Could you explain that with more details? Wasn't it already adjudicated if I got my passport stamped while I receive the new card?

Thanks again...

[MihaelaNYS 10]

The agreement is between your husband and the US Govt. It cannot be changed by some state court, or by separate agreement among yourselves. If the US Govt has a claim, they will go after your husband, and could care less what some other agreement sez.

You husband could collect from you under your separate agreement.

It makes sense. I am only concerned about how the USCIS will see this ''agreement'' ...

I hope that somebody who divorced, went throw I-751 successfully could share the experience and if at any point there were any questions regarding the settlement.

In my personal opinion, they shouldn't even get into it once they have a divorce decree and a lot of evidence of a bonafide marriage. But this is only my subjective oppinion that has nothing to do with their rules and the laws.....

Thank you.