Divorce while doing I-751

[Dakine 26]

Friend of mine's peititioner has just started divorce proceeding against her. She has received the one year extension and done biometrics.

What are her options.

Let it go and hope she doesn't get an interview and gets the GC before the divorce is final?

Let it go even if the divorce is final and when she gets the GC and notify USCIS after.

What will happen to her if she files for US citizenship in 5 years if she didn't refile or notify USCIS.

[payxibka 10,045]

Friend of mine's peititioner has just started divorce proceeding against her. She has received the one year extension and done biometrics.

What are her options.

Let it go and hope she doesn't get an interview and gets the GC before the divorce is final?

Let it go even if the divorce is final and when she gets the GC and notify USCIS after.

What will happen to her if she files for US citizenship in 5 years if she didn't refile or notify USCIS.

I was not aware that alien had to report a divorce to the USCIS... what form is that done on?

Edited August 8, 2009 by payxibka

[OPKSI751 0]

My recommendation is to withdraw the original petition and to refile a divorce waiver petition. Rest is upto the person who wants to take a chance. I am guessing most of the VJ folks would agree to what I have recommended.

[payxibka 10,045]

My recommendation is to withdraw the original petition and to refile a divorce waiver petition. Rest is upto the person who wants to take a chance. I am guessing most of the VJ folks would agree to what I have recommended.

I don't agree....

What you suggest is only feasible if/when the divorce is 100% complete....

The OP's friend's GC is within 90 days of expiry and is subject to abandonment of status permanent status when it does expire. Without the benefit of the extension which would be be void if the I-751 is withdrawn, and not currently able to refile due to the divorce not being final they would be in nowhere land without legal status ( a bad place to be)

Edited August 8, 2009 by payxibka

[ELW 5]

Let it go and hope she doesn't get an interview and gets the GC before the divorce is final?

The divorce just started so there is basically nothing to do but wait. Very likely it will be approved without interview and the ten year green card will come. When 5 years as a green card holder is over, she can file for citizenship.

[Bobby+Umit 161]

USCIS How do I...

What if I Am in Divorce Proceedings, But Am Not Yet Divorced?

If you and your spouse are unable to apply to remove the conditions on your residence because of divorce or annulment proceedings, you may not apply for a waiver of the requirement to file a joint petition, based on the “good faith” exception. You may not file for the waiver until after your marriage has been terminated.

Please see Immigration Policy and Procedural Memoranda, memo dated April 10, 2003 for more specific information.

This is a synopse of the memo:

It used to be that the conditional resident who had commenced divorce proceedings could file under the good faith/divorce waiver, even though the divorce was not yet final. In those situations, the alien would state that the divorce is pending and request that the I-751 be adjudicated, and any interview continued, after the divorce becomes finalized. The USCIS no longer allows this. On April 10, 2003, the Acting Associate Director of Operations issued a memo clarifying that the marriage must be officially dissolved before the conditional resident may apply under this waiver.

I don't have the specific link handy, but if your in the middle of the I-751, your suppose to notify the USCIS office of that fact *divorce/proceedings*, and go from there.

Edited August 9, 2009 by Bobby_Umit

[Brother Hesekiel 2,236]

The I-751 is filed correctly, NOA1 received, biometrics done . . . most likely the approval is about to be sent out. Why in the world would she now try to sabotage this? I don't know of any form where a pending divorce would have to be reported after the fact.

I would lean back and wait for the approval notice.

[DEDixon 39]

Does she know for sure that her husband isn't going to sabotage her status?

Really, no matter what he says, she is at risk of him doing something to sabotage her status behind her back unless it is a friendly divorce.

She might not have to report anything, he might do it for her.

[Bobby+Umit 161]

The I-751 is filed correctly, NOA1 received, biometrics done . . . most likely the approval is about to be sent out. Why in the world would she now try to sabotage this? I don't know of any form where a pending divorce would have to be reported after the fact.

I would lean back and wait for the approval notice.

Your correct - there is no "form" - however, there is guidance from USCIS.

(found the link)

To wit:

One common but troubling scenario arises when a couple jointly files I-751 paperwork, but later separates or divorces before the jointly filed I-751 is adjudicated. What is a foreign national to do in that situation?

CIS has provided guidance on what to do if a couple jointly files I-751 paperwork, but later separates or divorces before the jointly filed I-751 is adjudicated. If the couple separates, CIS should be notified so that the issue may be addressed at an interview at the local CIS office. If the couple divorces, new I-751 paperwork should be filed as a self-petition with a waiver request. In most cases, the waiver request may be based on showing that the marriage was entered into in good faith.

Perhaps the worst thing to do in this situation is nothing. If a jointly filed I-751 is approved after a couple separates or divorces, that approval may not be seen as valid and the individual may run into serious problems if s/he attempts to naturalize.

So - the choice is up to you...

[ELW 5]

Good research and info!

[OPKSI751 0]

My recommendation was for the situation where the I751 has been filed as a joint application, later on the couple divorces and divorce is 100% complete (divorce decree is available to be sent as evidence of divorce) and I751 has not been adjudicated. I should have clearly stated that. Sorry about that.