return to the U.S. with no i751 after separation or divorce?

[JB3000 0]

My topic title and description may not be adequate to explain what I am asking. I have been reading through many threads on this forum which have provided some understanding but i am still confused.

I am the US citizen in this case. My spouse recently received their conditional green card after we went through the K-1 visa and AOS process successfully over the last year. We have been married and living together since March 09. Unfortunately, we are having some serious marriage/relationship problems now. We have begun counseling and hope to improve things.

Nevertheless, we want to understand the consequences of what would happen should we end up separating or divorcing. Specifically, if a i751 is NOT filed before the conditional green card is up (either jointly or with a waiver request) will my spouse be unable to return to the U.S. if even as a visitor?

We want to avoid things becoming overly hostile or adversarial should our marriage prove impossible to make work.

I think for my spouse, the fear of being banned from the U.S. forever-- and for me the fear of being on the hook as a sponsor --push us toward feelings of mistrust.

We have NOT giving up on the marriage but are hoping that by being fully informed we can make better choices together.

JB in Seattle

[JB3000 0]

It's me the original poster again.

I just wanted to clarify that we're wondering not what will happen if my spouse doesn't file a i751 and stays past her conditional GC expiration. Of course that would mean being marked for deportation. But what if we divorced and then my spouse returned to their own country while the conditional green card was still valid?

Also... is marriage annulment an option and if so... does it change any of the immigration issues we are asking about at all.

These are complicate subtle questions btu I feel they really could effect what is the best path for us to take if we can not stabilize the relationship.

[Brother Hesekiel 2,236]

Assuming you guys get DIVORCED before it's time to file the ROC, your wife has the option to file the I-751 on her own. If she can PROVE that she entered the marriage in good faith, she has a chance to get the 10-year GC nonetheless.

Let's say she would not WANT to stay in the US, all alone without you. She then would surrender her GC and you guys should inform the USCIS of that fact in order to not trigger deportation proceedings long after she left the country voluntarily.

You did not reveal what your wife's home country is, but she should be able to return as a visitor. That said, since the default assumption of the US Immigration people is that everybody who desires to enter the US wants to stay, people from certain countries have problems to get a B1/B2 visa or even a visa waiver.

[Bobby+Umit 161]

My topic title and description may not be adequate to explain what I am asking. I have been reading through many threads on this forum which have provided some understanding but i am still confused.

I am the US citizen in this case. My spouse recently received their conditional green card after we went through the K-1 visa and AOS process successfully over the last year. We have been married and living together since March 09. Unfortunately, we are having some serious marriage/relationship problems now. We have begun counseling and hope to improve things.

Nevertheless, we want to understand the consequences of what would happen should we end up separating or divorcing. Specifically, if a i751 is NOT filed before the conditional green card is up (either jointly or with a waiver request) will my spouse be unable to return to the U.S. if even as a visitor?

If she meets the requirements for entry (and with the visa needed), no issues returning, even if she divorces and leaves the country (you). However, if you divorce, she can remove conditions herself, as noted above.

We want to avoid things becoming overly hostile or adversarial should our marriage prove impossible to make work.

I think for my spouse, the fear of being banned from the U.S. forever-- and for me the fear of being on the hook as a sponsor --push us toward feelings of mistrust.

No real reason to believe she would be banned from the US. Divorce happens all the time. However (again), if she elects to divorce and pursue her 10 year green card, you are still "on the hook" for her sponsorship. Unless she becomes an USC, you die, she dies, or she can be credited for 40 qtrs of work (takes 10 years of work to do that) - your responsible for any means tested benefits. I have read about some cases where the immigrant has successfully divorced and had the poverty level amount granted to them as "alimony" - so it is possible to be on the hook for more than "means tested benefits"

We have NOT giving up on the marriage but are hoping that by being fully informed we can make better choices together.

Always a good thing, but you should of became aware of these things prior to marrying... Less messy that way

JB in Seattle

[JB3000 0]

Thanks everyone for the feeedback so far. Follow up questions are posted below

Bobby wrote: No real reason to believe she would be banned from the US. Divorce happens all the time.

So what would be the proper steps to go through to avoid complications? I mean what would be the proper sequence of the various steps to undertake to ensure that my spouse at no time would be in violation of something and be marked for deportation. What would happen in the following case:

1 - divorce..

2 - my spouse leaves the country

3 - we do not file a i751 or otherwise notify the USCIS

4 - the greencard expires

At that point would there be any residual effects for my spouse ?

It seems that the USICS should b informed of something along the way.. but what and when do we inform them of so as not to trigger an order for removal or have a re-entry ban enacted?

____

Bobby wrote: ...if she elects to divorce and pursue her 10 year green card, you are still "on the hook" for her sponsorship. Unless she becomes an USC... your responsible for any means tested benefits. I have read about some cases where the immigrant has successfully divorced and had the poverty level amount granted to them as "alimony" - so it is possible to be on the hook for more than "means tested benefits"

This is where I could really use some help understanding what my obligations & liabilities are:

1 - What do you mean by "means tested benefits" I looked this up on google but it seems to be a broad legal term and I wasn't sure how it related to my financial obligation as sponsor

2 - my spouse does not currently work and had no real career path before coming here (living with the support of parents). How is the sponsor's obligation determined in the case of an immigrant divorcing and filing independently for removal of conditions? I understand I am responsible for her sponsorship but I do not have a clue as to how that would be determined.

Please keep the help coming. We need it.

JB in Seattle

[Brother Hesekiel 2,236]

Bobby,

I'm getting some weird vibes from your postings. To clarify, and to make sure we can help you better, I have the following 2 questions:

1) What is the home country of your wife?

2) Does your wife want to return to her home country, or do you want her to return to her home country?

[JB3000 0]

Bobby,

I'm getting some weird vibes from your postings. To clarify, and to make sure we can help you better, I have the following 2 questions:

1) What is the home country of your wife? > Japan

2) Does your wife want to return to her home country, or do you want her to return to her home country? Undecided at this point... we are still undergoing counseling. She has switched back and forth saying she would return home and at other times implying she would not give up her new rights here in the U.S. She has proposed returning home to stay with family temporarily and "cool off" without divorcing, although the therapist recommends against this. She is also very focused on getting more evidence for the removal of conditions even though we just got the conditional one and are having problems

I would like her to return home if we divorce/separate but honestly don't want that to happen.

answers inline above

Yeah I understand your comment Just Bob. I guess I'm trying to do two things in one post here. These questions are mostly trying to understand what are our and my options should we not be able to make things work. I do not want to plan for failure but it is at a point that I would regret not being informed.

Some of these questions are directed at trying to find an amicable and mutually agreeable way to end the marriage should that prove necessary. These are appropriately written as "we" questions.

The other part is me (as an individual) trying to figure out just what I should do if things become hostile between us. In otherwords.. how to protect myself if needed. I have had a few experiences recently that have shaken my faith in my spouse's mental stability and trustworthiness.

PS - I'm JB (the original poster), not Bobby. Bobby responded to my post and I was quoting his reply with follow up questions. thanks

Edited September 2, 2009 by JB3000

[JimVaPhuong 4,863]

Thanks everyone for the feeedback so far. Follow up questions are posted below

Bobby wrote: No real reason to believe she would be banned from the US. Divorce happens all the time.

So what would be the proper steps to go through to avoid complications? I mean what would be the proper sequence of the various steps to undertake to ensure that my spouse at no time would be in violation of something and be marked for deportation. What would happen in the following case:

1 - divorce.. Your wife could self-petition to remove conditions and get an unconditional green card, if she can prove marriage in "good faith". Otherwise, she will be out of status when the conditional green card expires. If USCIS learns of the divorce then they are compelled to take steps to terminate her conditional residency. This would more or less force her to self-petition immediately to remove conditions, leave the US voluntarily or face deportation hearings.

2 - my spouse leaves the country If her conditional green card is still valid, she'll be able to return without any problem, presuming she returns in less than a year. If she's gone more than a year and doesn't get a re-entry permit before leaving, she'll be considered to have abandoned her residency, and her green card will become invalid.

3 - we do not file a i751 or otherwise notify the USCIS She'll be out of status in two years when the conditional green card expires. If she's still in the US, then USCIS will initiate removal proceedings.

4 - the greencard expires Same as #3 above. If she doesn't file to remove conditions, then the green card WILL expire.

At that point would there be any residual effects for my spouse ?

It seems that the USICS should b informed of something along the way.. but what and when do we inform them of so as not to trigger an order for removal or have a re-entry ban enacted? You don't have to notify them of the divorce, but you may if you choose. That may trigger USCIS to take steps to terminate her conditional residency, as described above. She is REQUIRED to notify USCIS if her address changes.

____

Bobby wrote: ...if she elects to divorce and pursue her 10 year green card, you are still "on the hook" for her sponsorship. Unless she becomes an USC... your responsible for any means tested benefits. I have read about some cases where the immigrant has successfully divorced and had the poverty level amount granted to them as "alimony" - so it is possible to be on the hook for more than "means tested benefits"

This is where I could really use some help understanding what my obligations & liabilities are:

1 - What do you mean by "means tested benefits" I looked this up on google but it seems to be a broad legal term and I wasn't sure how it related to my financial obligation as sponsor "Means tested" means benefits that you only qualify for if your income (the "means") is low enough (the "test"), like welfare. It affects you because the affidavit of support allows the government to sue YOU to reimburse the government for any such benefits she collects.

2 - my spouse does not currently work and had no real career path before coming here (living with the support of parents). How is the sponsor's obligation determined in the case of an immigrant divorcing and filing independently for removal of conditions? I understand I am responsible for her sponsorship but I do not have a clue as to how that would be determined. Divorce does not change the terms of the affidavit of support. You are obligated to see that she is supported until she earns enough Social Security work credits (40 quarters), she becomes a US citizen, she loses her legal status and leaves the US, or either of you die.

Please keep the help coming. We need it.

JB in Seattle

[JB3000 0]

Thanks to everyone so far.

Maybe these are naive questions, but I'm still looking for more help though. I guess I need some things spelled out for me with anecdotes or examples.

Jim commented:

Divorce does not change the terms of the affidavit of support. You are obligated to see that she is supported until she earns enough Social Security work credits (40 quarters), she becomes a US citizen, she loses her legal status and leaves the US, or either of you die.

I get that but how is that negotiated/determined? What if my spouse and I disagree on her needs. For example.. if we divorces me, she moves out, and moves into an expensive apartment while demanding I support her in a lifestyle I can not afford. What is the method of enforcement. Is it just that if the immigrant attempts to file for some sort of social service benefits.. then the gov will sue me for reimbursement?

Or is there a some sort of process by which minimum support terms are established from the outset?

If anyone can post links to other relevant discussions on VJ that would be great. For example: one where a sponsor has had to provide money to an ex and how those payments were determined.

____

Jim also commented:

If your spouse leaves the country If her conditional green card is still valid, she'll be able to return without any problem, presuming she returns in less than a year. If she's gone more than a year and doesn't get a re-entry permit before leaving, she'll be considered to have abandoned her residency, and her green card will become invalid.

So I understand this as well... but not what the ramifications are. Compare these three examples:

1) We divorce > she goes back her country > we do not file (jointly or independantly) an i751 and let the green card expire while she is overseas.

2) We divorce > she goes back her country > we send the uscis notfication of her new address overseas but do not mention the divorce > we do not file (jointly or independantly) an i751 and let the green card expire while she is overseas.

3) We divorce > she goes back her country > we send the uscis notfication of our divorce and her new address overseas > we do not file (jointly or independantly) an i751 and let the green card expire while she is overseas.

They are identical except the part about notifying USCIS. But perhaps those differences have a big effect on her ability to avoid a re-entry ban. Would she be free to return to the US as a tourist? Would she be able to apply for K visa again someday with someone else?

[Brother Hesekiel 2,236]

JB,

By his own admission, Jim claims he's not an immigration attorney; however, his expertise is on par with a very experienced immigration expert. A bit of a mystery, really, but I'll give you a layman's response to your specific questions:

Jim commented:

Divorce does not change the terms of the affidavit of support. You are obligated to see that she is supported until she earns enough Social Security work credits (40 quarters), she becomes a US citizen, she loses her legal status and leaves the US, or either of you die.

I get that but how is that negotiated/determined? What if my spouse and I disagree on her needs. For example.. if we divorces me, she moves out, and moves into an expensive apartment while demanding I support her in a lifestyle I can not afford. What is the method of enforcement. Is it just that if the immigrant attempts to file for some sort of social service benefits.. then the gov will sue me for reimbursement?

First of all, during a non-amicable DIVORCE procedure, the amount of spousal support will be an issue that the court determines.

Should you fail to pay spousal support for your wife who, as you stated, has no means to support herself, she might ask our common uncle Sam for help. Uncle Sam decides how much she NEEDS to live on, but also reviews the court's decision and might even provide legal assistance to sue your butt, cancel your driver's license, and so on. You may be able to delay paying spousal support, but you won't get away with it for good. You're on the hook for 10 years, period.

____

Jim also commented:

If your spouse leaves the country If her conditional green card is still valid, she'll be able to return without any problem, presuming she returns in less than a year. If she's gone more than a year and doesn't get a re-entry permit before leaving, she'll be considered to have abandoned her residency, and her green card will become invalid.

So I understand this as well... but not what the ramifications are. Compare these three examples:

1) We divorce > she goes back her country > we do not file (jointly or independantly) an i751 and let the green card expire while she is overseas.

She will need a visa to enter the US again. If USCSI doesn't get notified that she had left the country, they may assume she overstayed and she might not get one.

2) We divorce > she goes back her country > we send the uscis notfication of her new address overseas but do not mention the divorce > we do not file (jointly or independantly) an i751 and let the green card expire while she is overseas.

Same as above, however, a bit safer.

3) We divorce > she goes back her country > we send the uscis notfication of our divorce and her new address overseas > we do not file (jointly or independantly) an i751 and let the green card expire while she is overseas.

Same as above.

They are identical except the part about notifying USCIS. But perhaps those differences have a big effect on her ability to avoid a re-entry ban. Would she be free to return to the US as a tourist? Would she be able to apply for K visa again someday with someone else?

You have to understand, if she does not surrender her GC to USCIS, they may not be aware that she left the country before the GC expired. After a while, deportation proceedings will be initiated and when she ever applies for a visitor's visa in Japan, they may refuse it based on the (wrong) assumption that she overstayed.

[JB3000 0]

Thank you Just Bob,

Just Bob commented:

First of all, during a non-amicable DIVORCE procedure, the amount of spousal support will be an issue that the court determines.

Should you fail to pay spousal support for your wife who, as you stated, has no means to support herself, she might ask our common uncle Sam for help. Uncle Sam decides how much she NEEDS to live on, but also reviews the court's decision and might even provide legal assistance to sue your butt, cancel your driver's license, and so on. You may be able to delay paying spousal support, but you won't get away with it for good. You're on the hook for 10 years, period.

Well, I guess I better read up on divorce process and settlement issues. I'm wondering what I could expect if she initiated a divorce. She had nothing going career wise before the marriage and we've only been together 5 months. Is that long enough to establish substantive long term alimony demands??!

Just Bob also commented:

You have to understand, if she does not surrender her GC to USCIS, they may not be aware that she left the country before the GC expired. After a while, deportation proceedings will be initiated and when she ever applies for a visitor's visa in Japan, they may refuse it based on the (wrong) assumption that she overstayed.

OK.. so what if she surrenders her green card before returning to japan? How does one even go about "surrendering" a green card. I'm really hoping someone can provide a roadmap for an.. which is an amicable divorce that doesn't hinder her future travel or visa opportunities.

[Bobby+Umit 161]

Looks like Jim gave you the answers you had about my post JB3000.

On your last few questions - divorce can be a nasty buisness. I have known couples that were all "sweet" and "loving" go for the jugular when they divorced.

One of my friends is still paying alimony to his x-wife. Depending on the judge, case, it could be good or bad. (this is why some people get pre-nups)

You surrender your green card at immigration when you are leaving the US - just declare it to the CBP and they will take you through the steps.

They will not start deportation proceedings if you leave without turning it in, You would probably have issues trying to come back in if expires while overseas.

The passport stamps would show left the country if it came down to that.

[JB3000 0]

Thanks again. I am still not quite clear on my central question. Which is:

Is there a way to divorce amicably and have my spouse return to her home country without preventing her from returning to he US as a visitor or applying for another K visa with a different person in the future?

If we do everything by the book..

1 - divorce

2 - shortly afterward she surrenders her green card upon leaving the country

3 - immediately after that I notify the USCIS of the divorce

sounds clean right? well my spouse is afraid that could prevent her from being allowed back into the U.S. even as a visitor (she has relatives in Hawaii). She is worried that a customs agent may deny her visitors visa (even if we follow the steps above) if they see she has recently divorced a US citizen and surrendered her green card when she last left the U.S.

___

Does this make sense. Is what I am asking clear?

This is kind of a big issue because if this can be accomplished without the punitive effects (possible denial entry or a deportation order due to our divorce) then she may be MUCH more willing to consider an amicable divorce separation. She has basically told me that she would not cooperate with a divorce now because of this fear of not being allowed in the US again if she does not see the immigration process through to getting her unconditional car. I want to avoid an adversarial struggle at all costs.

___

Please continue the help. After reading a lot of post over the past couple of days.. I have to say how impressed and appreciative I am of those expert posting on VJ who share their invaluable knowledge and experience for every couple and individual in need.

[JB3000 0]

I feel that my thread's title is not quite acurate anymore. Is ther a way to update it or would I need to start a new thread?

[Brother Hesekiel 2,236]

JB,

we perfectly understand the issue at hand.

Even if you guys do everything right, by the book, it is POSSIBLE that they would deny her a visitor's visa. Is it probably? I don't know, nobody KNOWS with any degree of certainty. Default thinking of the immigration people is that everybody who wants to visit the US of A intends to stay, unless they prove considerable ties to their home country.

So if your wife applies for a B1/B2 in Japan, they will want to see the aforementioned ties. With a valid B1/B2, she will most likely not encounter any problems at the point of entry.

That said, there are no guarantees, my friend. Unfortunately, I don't see any way to DO anything that would have any influence on what the people in Japan may think once your then ex-wife is applying for a visitor's visa.

Edited September 4, 2009 by Just Bob