I751 Interview, filed jointly but now separated -- PLEASE HELP!

[miko31879 0]

Hi All,

Please I need some advise ASAP. I filed my I751 last year October (joint petition), received an RFE, sent in more evidence but now I have been called for an interview. The issue now is I've been having problems in my marriage, lost a child, lost our jobs, currently living with my mum, been out of the country looking after a sick relative (rushed back to attend interview), my husband has walked out on me (has not yet asked for a divorce or separation), I know where he is but he refuses to talk to me. Things have been really tough and we do not have any joint accounts or credit cards or utility bills (mum takes care of all this). The only joint proof I have is our lease and utility bills from when we first applied 3 years ago, after we lost our jobs and moved to my mum's we have no joint anything.

What do I do? Should I go to interview without my husband and explain all this? Will I get denied? What happens if I get denied? I've lived in this country for the last 12 years of my life. Went to school and worked here. My life is here, family and friends are all here. I love my husband and I want my marriage to work. I'm afraid I may not get a chance if he will not come with

Please advise. Thank you kindly.

[FutureAmerican 2]

Firstly, how long do you have until the interview? The key to the interview is proving that it was a bona fide marriage at the start - so any evidence proving that will help - even letters, photos, emails, phone bills showing you were calling each other on a regular basis etc. Friends who have known you throughout your marriage could provide affidaviats such as the example in the guide, to show that the marriage was in good faith and the problems have only occurred recently.

Out of interest, on what basis is your mother staying in the country, and how were you living here prior to marriage (student visa etc)? Just wondering if there could be any basis for petition on one of those categories. Your primary concern however should be showing at the interview that you were in a bona fide marriage, and any evidence in addition to the above can help with that.

Best of luck in any case, and if you could fill in your timeline/give us an idea of the interview date then that would help too.

[JimVaPhuong 4,863]

You've got a problem, alright.

You can withdraw your petition and refile with a request for a waiver of the joint filing requirement, but you don't seem to meet the requirements for that. The possible grounds for the waiver are if you are a widow, divorced, abused, or will suffer extreme hardship.

You're not a widow. You can't file based on divorce unless your divorce is final - separation or divorce pending is not enough. Abuse requires solid proof of the abuse. In addition, all three of these ALSO require proof that you entered the marriage in "good faith". Having proof from the beginning of the marriage may be enough, especially if you are contending that the marriage fizzled shortly after that. It depends on how much proof you've got, and how solid that proof is. Affidavits from people who know both of you would help, as well.

Extreme hardship waivers don't require proof of "good faith" marriage. However, they are difficult to obtain. USCIS assumes that anyone being deported is going to suffer some hardship as a result. You'd have to prove that the hardship you will suffer is far above and beyond the hardship most other immigrants would suffer, and the hardship must be due to circumstances that arose AFTER you immigrated to the US. For example, you might qualify if your home country had descended into civil war, and it wasn't safe for you to return. You might also qualify if you had contracted a life threatening illness that couldn't be treated in your home country.

What you may be able to do is file for the hardship waiver as a stalling tactic while you try to get a divorce. With luck, this will hold off USCIS long enough to get the divorce completed. Once the divorce is final you can withdraw your hardship waiver, and resubmit based on the divorce. You're still going to need the evidence that you entered the marriage in good faith.

I recommend you see a good immigration attorney to discuss your options.

FutureAmerican, she can't file for a "good faith" marriage without a final divorce.

[Krikit 1,165]

Moving from Removing Conditions to Effects of Major Changes forum. Best of luck, Miko.

[FutureAmerican 2]

Jim - thanks for the info...I feared that because the petitioner is not divorced, it would fall into that "grey area". I definately agree that hiring an Immigration Attorney would be a smart move at this point with the factors involved.

[JimVaPhuong 4,863]

Jim - thanks for the info...I feared that because the petitioner is not divorced, it would fall into that "grey area". I definately agree that hiring an Immigration Attorney would be a smart move at this point with the factors involved.

It really was a gray area for a long time, and USCIS was not consistent in how they handled cases with separation or pending divorce. They finally issued a memorandum (don't remember the exact year... 2003 maybe?) that established firm guidance for their officers. That guidance made it clear - in order to self petition under 8 CFR, section 216, the divorce must be final. The memo also made it clear that, in case of a pending divorce where removal proceedings had begun, the self-petitioner could ask the immigration judge for a stay while they waited for final outcome on the divorce, and that the immigration judge could then adjudicate the I-751. This is another option for the OP, but I wouldn't recommend that anyone let their case get as far as being in deportation hearings before taking some kind of action.

[miko31879 0]

Hi All,

Thanks so much for the feedback and your advice. I appreciate all of it.

I already had my interview and I went alone. I told the whole truth about my situation i.e. tension with my husband, recently unemployed, in-laws and just explained my situation as best as I could. I went armed with evidence, new and previously submitted. I was asked many questions including if I wanted to stay together or get a divorce, did I try to find him and so on.

Anyway after everything, my petition was approved and conditions have been lifted. I'm so thankful and relieved. Next step is to find my husband and figure out my life. Again, I thank you for your help.

You all take care.

[KarenCee 3]

*HUGS* I'm glad you passed. I really hope you get your life figured out. I saw something in your original post about having lost a child. Not wanting to be nosy (and not asking for details) but having been through that myself I know what it can do to a marriage...especially a marriage that was crumbling to begin with (as in my case - not immigration related though). My ex wouldn't even talk to me about it...even went so far as to say some pretty crass things about our loss. So I know what that can do. Then you have the added stress of losing jobs...you guys are under some extreme stress. I hope you guys can get some competent counseling (if that's your desire) before ending your marriage.