Can he revoke a CR1 visa for an early divorce?

[JimVaPhuong 4,863]

Well, we read the statutes differently because Section 216 goes on to say

The Attorney General, in the Attorney General's discretion, may remove

the conditional basis of the permanent resident status for an alien who fails to meet the

requirements of paragraph (1) if the alien demonstrates that-

(B.) the qualifying marriage was entered into in good faith by the alien spouse, but the

qualifying marriage has been terminated (other than through the death of the spouse) and the

alien was not at fault in failing to meet the requirements of paragraph (1).

If the status by your interpretation is technically invalid as of the date of nullity or divorce, then the AG (Attorney General) would have no "conditional basis to remove" in such exceptions.

According to 8 CFR, 216(3), USCIS can issue a notice of termination anytime during the two years if they determine that either of the conditions in 216(b )(1) are true:

http://law.justia.com/us/cfr/title08/8-1.0.1.2.20.html

You can look up the code yourself at the GPO here:

http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi

(a) During the two-year conditional period. The director shall send a formal written notice to the conditional permanent resident of the termination of the alien's conditional permanent resident status if the director determines that any of the conditions set forth in section 216(b )(1) or 216A(b )(1) of the Act, whichever is applicable, are true, or it becomes known to the government that an alien entrepreneur who was admitted pursuant to section 203(b )(5) of the Act obtained his or her investment capital through other than legal means (such as through the sale of illegal drugs). If the Service issues a notice of intent to terminate an alien's conditional resident status, the director shall not adjudicate Form I–751 or Form I–829 until it has been determined that the alien's status will not be terminated. During this time, the alien shall continue to be a lawful conditional permanent resident with all the rights, privileges, and responsibilities provided to persons possessing such status. Prior to issuing the notice of termination, the director shall provide the alien with an opportunity to review and rebut the evidence upon which the decision is to be based, in accordance with §103.2(b )(2) of this chapter. The termination of status, and all of the rights and privileges concomitant thereto (including authorization to accept or continue in employment in this country), shall take effect as of the date of such determination by the director, although the alien may request a review of such determination in removal proceedings.

Again, I'm not an attorney, and reading this stuff makes my head spin, but this sure sounds like USCIS isn't going to wait for the end of the two year period if they get wind of the divorce.

[3600rs 24]

Well, we read the statutes differently because Section 216 goes on to say

The Attorney General, in the Attorney General's discretion, may remove

the conditional basis of the permanent resident status for an alien who fails to meet the

requirements of paragraph (1) if the alien demonstrates that-

(B.) the qualifying marriage was entered into in good faith by the alien spouse, but the

qualifying marriage has been terminated (other than through the death of the spouse) and the

alien was not at fault in failing to meet the requirements of paragraph (1).

If the status by your interpretation is technically invalid as of the date of nullity or divorce, then the AG (Attorney General) would have no "conditional basis to remove" in such exceptions.

According to 8 CFR, 216(3), USCIS can issue a notice of termination anytime during the two years if they determine that either of the conditions in 216(b )(1) are true:

http://law.justia.com/us/cfr/title08/8-1.0.1.2.20.html

You can look up the code yourself at the GPO here:

http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi

(a) During the two-year conditional period. The director shall send a formal written notice to the conditional permanent resident of the termination of the alien's conditional permanent resident status if the director determines that any of the conditions set forth in section 216(b )(1) or 216A(b )(1) of the Act, whichever is applicable, are true, or it becomes known to the government that an alien entrepreneur who was admitted pursuant to section 203(b )(5) of the Act obtained his or her investment capital through other than legal means (such as through the sale of illegal drugs). If the Service issues a notice of intent to terminate an alien's conditional resident status, the director shall not adjudicate Form I–751 or Form I–829 until it has been determined that the alien's status will not be terminated. During this time, the alien shall continue to be a lawful conditional permanent resident with all the rights, privileges, and responsibilities provided to persons possessing such status. Prior to issuing the notice of termination, the director shall provide the alien with an opportunity to review and rebut the evidence upon which the decision is to be based, in accordance with §103.2(b )(2) of this chapter. The termination of status, and all of the rights and privileges concomitant thereto (including authorization to accept or continue in employment in this country), shall take effect as of the date of such determination by the director, although the alien may request a review of such determination in removal proceedings.

Again, I'm not an attorney, and reading this stuff makes my head spin, but this sure sounds like USCIS isn't going to wait for the end of the two year period if they get wind of the divorce.

Yeah makes our head spin. They strip the conditional green card before 2 years with a removal because of divorce...but then allow you to remove conditions by filing the I 751, keeping the status valid for a year more, meanwhile removal court waits not knowing what to do till the I 751 is adjudicated.

[JimVaPhuong 4,863]

Yeah makes our head spin. They strip the conditional green card before 2 years with a removal because of divorce...but then allow you to remove conditions by filing the I 751, keeping the status valid for a year more, meanwhile removal court waits not knowing what to do till the I 751 is adjudicated.

I think the judge in the removal proceedings has the authority to adjudicate the I-751 himself - de novo - without any regard to the decision USCIS makes. That's assuming it even gets that far. According to the wording of the act, I think USCIS will notify the alien of the evidence, and permit the alien to respond to that evidence. They're supposed to do this before they issue the notice of of intent to terminate conditional residence. I imagine this would be an opportunity for the alien to respond with the I-751 and waiver request before the formal notice is issued.

Anyway, I think all of that could be avoided by simply filing the I-751 with the waiver request immediately after the divorce. An alien can file the waiver anytime during the two year period that the conditional residency is valid, provided the divorce is final. It doesn't have to be filed in the 90 day window.

[diadromous mermaid 36]

Anyway, I think all of that could be avoided by simply filing the I-751 with the waiver request immediately after the divorce. An alien can file the waiver anytime during the two year period that the conditional residency is valid, provided the divorce is final. It doesn't have to be filed in the 90 day window.

Doesn't this statement, particularly the text I have bolded, contradict the very essence of your initial post?

[JimVaPhuong 4,863]

Anyway, I think all of that could be avoided by simply filing the I-751 with the waiver request immediately after the divorce. An alien can file the waiver anytime during the two year period that the conditional residency is valid, provided the divorce is final. It doesn't have to be filed in the 90 day window.

Doesn't this statement, particularly the text I have bolded, contradict the very essence of your initial post?

Sorry if my original post wasn't clear.

I think the point I was trying to make with my initial post was to address the divorce with USCIS right away, and not wait until the conditional green card is about to expire. I did say in that post that I didn't think USCIS would go looking for her, but the text of 8 CFR, 216(3) says that they could do so if they learned about the divorce. I also said I thought her husband would notify them. The safest bet would be either file for the I-751 waiver immediately after the divorce, or prepare to leave the country, rather than wait for USCIS to trigger the sequence of events described in 8 CFR, 216(3).

The text you bolded just states that she can file the waiver immediately after the divorce, unlike the joint application which can only be filed in the 90 day window. My guess is that they allow this because they know that an event like a divorce can change the conditional resident status, so they have to allow it to be addressed right away.

If I'm missing the point please let me know.

[diadromous mermaid 36]

Conjecture, of course, but I belive the reason that an alien can file the I-751 application as soon as a divorce decree is available and not be required to await the typical filing date is because in order to successfully remove conditions without a joint application with a USC spouse, an alien must be able to demonstrate that the marriage that has terminated was bonafide. Once the marriage is over, there would be little likelihood that an alien would be abe to accumulate any more evidence of shared assets and liabilitites, or commingled finances, or cohabitation, by virtue of the fact that the parties are no longer man and wife. I think it has less to do with any conditional status being invalid, and more to do with the fact that the alien would have all evidence that could be amassed at that time.

Anyway, I think all of that could be avoided by simply filing the I-751 with the waiver request immediately after the divorce. An alien can file the waiver anytime during the two year period that the conditional residency is valid, provided the divorce is final. It doesn't have to be filed in the 90 day window.

Doesn't this statement, particularly the text I have bolded, contradict the very essence of your initial post?

Sorry if my original post wasn't clear.

I think the point I was trying to make with my initial post was to address the divorce with USCIS right away, and not wait until the conditional green card is about to expire. I did say in that post that I didn't think USCIS would go looking for her, but the text of 8 CFR, 216(3) says that they could do so if they learned about the divorce. I also said I thought her husband would notify them. The safest bet would be either file for the I-751 waiver immediately after the divorce, or prepare to leave the country, rather than wait for USCIS to trigger the sequence of events described in 8 CFR, 216(3).

The text you bolded just states that she can file the waiver immediately after the divorce, unlike the joint application which can only be filed in the 90 day window. My guess is that they allow this because they know that an event like a divorce can change the conditional resident status, so they have to allow it to be addressed right away.

If I'm missing the point please let me know.

[3600rs 24]

The time span between separation and getting the divorce decree for the waiver is traumatic. A compliant made by a revengeful USC can produce events described in 8 CFR 216-3 putting the alien in further hardship even before getting the divorce decree for a waiver. Sad state of affairs. I wonder what will be the stratagem then.

[JimVaPhuong 4,863]

Conjecture, of course, but I belive the reason that an alien can file the I-751 application as soon as a divorce decree is available and not be required to await the typical filing date is because in order to successfully remove conditions without a joint application with a USC spouse, an alien must be able to demonstrate that the marriage that has terminated was bonafide. Once the marriage is over, there would be little likelihood that an alien would be abe to accumulate any more evidence of shared assets and liabilitites, or commingled finances, or cohabitation, by virtue of the fact that the parties are no longer man and wife. I think it has less to do with any conditional status being invalid, and more to do with the fact that the alien would have all evidence that could be amassed at that time.

That's certainly possible.

The time span between separation and getting the divorce decree for the waiver is traumatic. A compliant made by a revengeful USC can produce events described in 8 CFR 216-3 putting the alien in further hardship even before getting the divorce decree for a waiver. Sad state of affairs. I wonder what will be the stratagem then.

Technically, I don't think the conditions of her conditional residence have been broken until the divorce is final. 216(1) says "judicially annulled or terminated". On the other hand, if her husband sends a letter to USCIS presenting evidence that the marriage was "entered into for the purpose of procuring an alien's admission as an immigrant", that would change things dramatically. If his letter only says "We're getting a divorce" then I would guess the response from USCIS would be "Ok. Let us know when it's final. In the meantime, don't bother us".

If she decides she wants to stay, I think she'll be fine as long as long as she files for the waiver as soon as she gets the divorce decree, and she has sufficient evidence of good faith. Unless her husband has concrete evidence of fraud, I don't think there will be much he can do.

[3600rs 24]

With respect to the poster, a complaint like " my spouse left soon after she got her conditional green card, we are in divorce proceedings since she had selfish intentions" can possibly produce a hair triggered stereotype boilerplate removal and termination. The alien needs to be expeditious in filing the waiver.

[JimVaPhuong 4,863]

With respect to the poster, a complaint like " my spouse left soon after she got her conditional green card, we are in divorce proceedings since she had selfish intentions" can possibly produce a hair triggered stereotype boilerplate removal and termination. The alien needs to be expeditious in filing the waiver.

That's true, if they take that seriously as an accusation of fraud. In that case, the waiver isn't going to do her any good. You can't get a waiver for conditional residence that is terminating because of fraud. Hopefully, USCIS would take a letter like that with a huge grain of salt. I'm sure they get letters like that all the time from bitter spouses who are breaking up with their immigrant spouses. Heck, just in the past week there have been several men posting on this forum wanting to know how they can get their wives deported.

I definitely agree she needs to move fast with the waiver, if she chooses to stay in the US. If she thinks her husband is going to send a nasty-gram to USCIS then it probably wouldn't hurt to preempt his move with a notice of her own. In fact, she's required to notify USCIS of her new address with her daughter. That would be a good opportunity to give them a heads up about the divorce. That might help take the sting out of any letter her husband subsequently sends. Dunno... just thinking out loud.

[3600rs 24]

An accusation is an allegation without proof. A waiver showing a real marriage will be approved even if filed after the fraud accusation with the OP in removal. I think the OP should know if the marriage was real, there is nothing that can stop her from getting conditions removed.

[retiredfromforum 1]

The time span between separation and getting the divorce decree for the waiver is traumatic. A compliant made by a revengeful USC can produce events described in 8 CFR 216-3 putting the alien in further hardship even before getting the divorce decree for a waiver. Sad state of affairs. I wonder what will be the stratagem then.

indeed

this is what is going to #### my fake wife up. filed fraud charges against her...uscis proceeding forward. she cant file the I-751 until the marriage has been ended and in the state of virginia a no-contest divorce is a minimum 6 month separation. obviously this wont be a no-fault and a legal battle and even more time taken allowing uscis more time to investigate and revoke all the while the fake fraud wife can not file her I751 waiver.

i actually like the way it has and will work out

but if you also read my prev. post on what occured in my marriage you will also see fairly obvious fraud commited by my fake wife as well.

Edited July 13, 2009 by retiredfromforum

[diadromous mermaid 36]

Chances are in your case, no revocation would likely occur. It takes time and legal resources to do that. No, USCIS will wait until she presents her application to remove conditions and will scutinize her submission and evidences carefully. If she doesn't provide sufficient evidence of a bona fide marriage then USCIS can simply deny the application. However, I will caution you not to rest to much on your sense of what USCIS will do with an investigation. It will be your former wife that will trip herself up, if she isn't successful.

The time span between separation and getting the divorce decree for the waiver is traumatic. A compliant made by a revengeful USC can produce events described in 8 CFR 216-3 putting the alien in further hardship even before getting the divorce decree for a waiver. Sad state of affairs. I wonder what will be the stratagem then.

indeed

this is what is going to #### my fake wife up. filed fraud charges against her...uscis proceeding forward. she cant file the I-751 until the marriage has been ended and in the state of virginia a no-contest divorce is a minimum 6 month separation. obviously this wont be a no-fault and a legal battle and even more time taken allowing uscis more time to investigate and revoke all the while the fake fraud wife can not file her I751 waiver.

i actually like the way it has and will work out

but if you also read my prev. post on what occured in my marriage you will also see fairly obvious fraud commited by my fake wife as well.

[3600rs 24]

The time span between separation and getting the divorce decree for the waiver is traumatic. A compliant made by a revengeful USC can produce events described in 8 CFR 216-3 putting the alien in further hardship even before getting the divorce decree for a waiver. Sad state of affairs. I wonder what will be the stratagem then.

indeed

this is what is going to #### my fake wife up. filed fraud charges against her...uscis proceeding forward. she cant file the I-751 until the marriage has been ended and in the state of virginia a no-contest divorce is a minimum 6 month separation. obviously this wont be a no-fault and a legal battle and even more time taken allowing uscis more time to investigate and revoke all the while the fake fraud wife can not file her I751 waiver.

i actually like the way it has and will work out

but if you also read my prev. post on what occured in my marriage you will also see fairly obvious fraud commited by my fake wife as well.

Take note that nothing stops her filing a I 751 good faith waiver even at removal. The Judge is most likely to terminate or continue proceedings till the waiver is approved, after which he will investigate the denied waiver and the accusations without bias. Its is the JUDGE that will find her guilty of fraud if proof exist. Your charges or accusations will not change anything for the OP.

Thanks mermaid

[retiredfromforum 1]

The time span between separation and getting the divorce decree for the waiver is traumatic. A compliant made by a revengeful USC can produce events described in 8 CFR 216-3 putting the alien in further hardship even before getting the divorce decree for a waiver. Sad state of affairs. I wonder what will be the stratagem then.

indeed

this is what is going to #### my fake wife up. filed fraud charges against her...uscis proceeding forward. she cant file the I-751 until the marriage has been ended and in the state of virginia a no-contest divorce is a minimum 6 month separation. obviously this wont be a no-fault and a legal battle and even more time taken allowing uscis more time to investigate and revoke all the while the fake fraud wife can not file her I751 waiver.

i actually like the way it has and will work out

but if you also read my prev. post on what occured in my marriage you will also see fairly obvious fraud commited by my fake wife as well.

Take note that nothing stops her filing a I 751 good faith waiver even at removal. The Judge is most likely to terminate or continue proceedings till the waiver is approved, after which he will investigate the denied waiver and the accusations without bias. Its is the JUDGE that will find her guilty of fraud if proof exist. Your charges or accusations will not change anything for the OP.

Thanks mermaid

yeah...but it prolongs her speedy process she wanted done in her little scam letter i uncovered.

i wont go into detail, and just let the government do their part...my hands are no longer dirty any longer with the mess. but after reading the letter and knowing the law...well lets just say there will be 2 documents total showing co-mingling of assets and liabilities out of a total of 30.

Edited July 14, 2009 by retiredfromforum