Conditional Permanent resident going through divorce..

[mbuk 2]

I have posted several times on here and read useful responses. However, after reading through information on the USCIS website and speaking to a number of immigration attorneys I'm more confused than ever how to handle my situation. Background:

* I received a 2 year conditional GC May 2009. This expires in May 2011.

* My wife filed for divorce in Nov09. We are expected to be legally and finally divorced in May 2010.

It was also my understanding that I must inform the USCIS immediately following my divorce because, since my GC was conditional it will no longer be valid. I believe I have a good case with respect to providing evidence that the marriage was made in good faith. This part doesn't really concern me at the moment.

It was also my understanding that as soon as I receive a final divorce decree, I should submit an I-751 *with a dossier of evidence proving good faith* and checking the box D in part 2: I entered into the marriage in good faith but the marriage was terminated through divorce or annulment.

According to the USCIS website:

If You Are In Divorce Proceedings But Are Not Yet Divorced

If you are still married, but legally separated and/or in pending divorce or annulment proceedings, and:

You filed a waiver request. We will issue a request for evidence (RFE) specifically asking for a copy of the final divorce decree or annulment (if applicable).

You filed a Form I-751 petition jointly. We will issue a request for evidence (RFE) specifically asking for a copy of the final divorce decree or annulment and a statement that you would like to have your joint filing petition treated as a waiver.

Upon receipt of the final divorce decree or annulment within the specified time period, we will amend the petition, to indicate that eligibility has been established for a waiver of the joint filing requirement based on the termination of the marriage.

So does this mean I can file a waiver? If so, what form is this? I need to call the USCIS I feel about this.

Secondly:

After speaking to one attorney at length, she claims that I can actually file a 'separate case' in advance that doesn't require me to send in a final divorce decree as yet - this will be good faith evidence. When I asked her what form this is, she did not say for whatever reason, time ticking down etc. So, is she referring to me filing a waiver in advance, in accordance with the USCIS statement, that is actually separate to an I-751 ticking box D? It seems to me the whole point of ticking box D is to request a waiver? Therefore, can I file *before* my decree requesting a waiver and will receive an RFE for the decree later?

I am really confused now.

Feedback is appreciated.

Thanks.

Edited January 7, 2010 by mbuk

[rika60607 215]

Your GC is valid until you are divorced or until it expires after 2 years, whichever comes first.

If divorce comes first, your GC is still valid, until USCIS finds out and makes a motion to cancel it. Then, Immigration Judge will see you and may decide that your status is terminated. Only then your GC is no longer valid even if it did not expire yet.

To avoid the above scenario, file I751 shortly after divorce, if divorce is final before the 90 day filing window for ROC.

If divorce is not final at the time of 90 day window for ROC, you should file I-751 with waiver (same form) and provide final divorce decree later.

Do not file I-751 prior to 90 day window if you do not have final divorce decree.

Waiver - is that very same I-751 form, you just check the option - file with waiver based on marriage in good faith.

I have posted several times on here and read useful responses. However, after reading through information on the USCIS website and speaking to a number of immigration attorneys I'm more confused than ever how to handle my situation. Background:

* I received a 2 year conditional GC May 2009. This expires in May 2011.

* My wife filed for divorce in Nov09. We are expected to be legally and finally divorced in May 2010.

It was also my understanding that I must inform the USCIS immediately following my divorce because, since my GC was conditional it will no longer be valid. I believe I have a good case with respect to providing evidence that the marriage was made in good faith. This part doesn't really concern me at the moment.

It was also my understanding that as soon as I receive a final divorce decree, I should submit an I-751 *with a dossier of evidence proving good faith* and checking the box D in part 2: I entered into the marriage in good faith but the marriage was terminated through divorce or annulment.

According to the USCIS website:

If You Are In Divorce Proceedings But Are Not Yet Divorced

If you are still married, but legally separated and/or in pending divorce or annulment proceedings, and:

You filed a waiver request. We will issue a request for evidence (RFE) specifically asking for a copy of the final divorce decree or annulment (if applicable).

You filed a Form I-751 petition jointly. We will issue a request for evidence (RFE) specifically asking for a copy of the final divorce decree or annulment and a statement that you would like to have your joint filing petition treated as a waiver.

Upon receipt of the final divorce decree or annulment within the specified time period, we will amend the petition, to indicate that eligibility has been established for a waiver of the joint filing requirement based on the termination of the marriage.

So does this mean I can file a waiver? If so, what form is this? I need to call the USCIS I feel about this.

Secondly:

After speaking to one attorney at length, she claims that I can actually file a 'separate case' in advance that doesn't require me to send in a final divorce decree as yet - this will be good faith evidence. When I asked her what form this is, she did not say for whatever reason, time ticking down etc. So, is she referring to me filing a waiver in advance, in accordance with the USCIS statement, that is actually separate to an I-751 ticking box D? It seems to me the whole point of ticking box D is to request a waiver? Therefore, can I file *before* my decree requesting a waiver and will receive an RFE for the decree later?

I am really confused now.

Feedback is appreciated.

Thanks.

[mbuk 2]

Your GC is valid until you are divorced or until it expires after 2 years, whichever comes first.

If divorce comes first, your GC is still valid, until USCIS finds out and makes a motion to cancel it. Then, Immigration Judge will see you and may decide that your status is terminated. Only then your GC is no longer valid even if it did not expire yet.

To avoid the above scenario, file I751 shortly after divorce, if divorce is final before the 90 day filing window for ROC.

If divorce is not final at the time of 90 day window for ROC, you should file I-751 with waiver (same form) and provide final divorce decree later.

Do not file I-751 prior to 90 day window if you do not have final divorce decree.

Waiver - is that very same I-751 form, you just check the option - file with waiver based on marriage in good faith.

Thanks for your input. Since my GC expires in May 2011 the 90 day filing window is not an issue as far as I can see.

My original question, based on what I *thought* I read on the USCIS site is that can I file the waiver before my divorce is finalized and then have the USCIS make an RFE of the final decree or do I have to wait until it's final then send everything off?

I think the former makes sense since I'd be giving the USCIS advance notice to file a waiver, get my case on the map and then they would request my decree.

But all the guides here state I have to wait until it's final, *then file*.

This is why I'm confused!

[JimVaPhuong 4,863]

Thanks for your input. Since my GC expires in May 2011 the 90 day filing window is not an issue as far as I can see.

My original question, based on what I *thought* I read on the USCIS site is that can I file the waiver before my divorce is finalized and then have the USCIS make an RFE of the final decree or do I have to wait until it's final then send everything off?

I think the former makes sense since I'd be giving the USCIS advance notice to file a waiver, get my case on the map and then they would request my decree.

But all the guides here state I have to wait until it's final, *then file*.

This is why I'm confused!

Filing before the divorce is final is only necessary if your green card would expire before then. The reason the guides give different advise is because it's a relatively recent policy for USCIS to issue an RFE if you request the waiver (by checking box "D"), but don't include a copy of the divorce decree. Before this new policy, they would have simply denied the petition.

The waiver request is not a separate form. The I-751 requires that you file jointly with your spouse. By checking box "D" you are asking that this requirement be waived so that you can file alone. Checking box "D" IS the waiver request.

So, you don't have to do anything yet. If you get the divorce decree before reaching the 90 day window before your green card expires, then go ahead and collect your evidence and file the I-751. If you reach the 90 day window before your green card expires before getting the divorce decree, then go ahead and file without the divorce decree. You'll get an RFE for the divorce decree when USCIS gets around to adjucating your petition. Until you reach one of these two milestones - final divorce or expiration of green card - you don't have to do anything.

[mbuk 2]

Filing before the divorce is final is only necessary if your green card would expire before then. The reason the guides give different advise is because it's a relatively recent policy for USCIS to issue an RFE if you request the waiver (by checking box "D"), but don't include a copy of the divorce decree. Before this new policy, they would have simply denied the petition.

The waiver request is not a separate form. The I-751 requires that you file jointly with your spouse. By checking box "D" you are asking that this requirement be waived so that you can file alone. Checking box "D" IS the waiver request.

So, you don't have to do anything yet. If you get the divorce decree before reaching the 90 day window before your green card expires, then go ahead and collect your evidence and file the I-751. If you reach the 90 day window before your green card expires before getting the divorce decree, then go ahead and file without the divorce decree. You'll get an RFE for the divorce decree when USCIS gets around to adjucating your petition. Until you reach one of these two milestones - final divorce or expiration of green card - you don't have to do anything.

I appreciate your reply JimVaPhuong since you're obviously knowledgeable and contribute a lot to the boards.

I was feeling undue pressure despite, in my opinion plenty of good evidence that the marriage was in good faith. Due to the recent policy of USCIS to send an RFE for the decree and since I know my divorce will be final in May 2010, is there not some value in applying for the waiver without the decree, getting my case on the map and then sending in the divorce decree to speed things up?

Also, have you (or anyone else) had experience of what happens once the waiver has been sent in? Do the USCIS open up a new case or will they (a) request more evidence if necessary or (B) process the case with the outcome being a final interview? I called one attorney who said I file now without my decree and start up an entirely 'new case'. This was the first time I heard this from any attorney and I didn't like the pushiness of them. I felt like I was being pressured more than anything (I know, that's their job it seems!)

In all honesty, I've called numerous attorneys since I'm not really comfortable filing this on my own, even though I'm compiling a large dossier of evidence. By this I mean it's not difficult to compile but I feel legal representation might give me a little more safety for such an important step. I've stated before that I would like to have an attorney represent me if it goes to interview, just to be on the safe side. I've seen some experienced ones who charge very reasonable rates for filing and interview attendance.

Edited January 8, 2010 by mbuk

[JimVaPhuong 4,863]

I appreciate your reply JimVaPhuong since you're obviously knowledgeable and contribute a lot to the boards.

I was feeling undue pressure despite, in my opinion plenty of good evidence that the marriage was in good faith. Due to the recent policy of USCIS to send an RFE for the decree and since I know my divorce will be final in May 2010, is there not some value in applying for the waiver without the decree, getting my case on the map and then sending in the divorce decree to speed things up?

Also, have you (or anyone else) had experience of what happens once the waiver has been sent in? Do the USCIS open up a new case or will they (a) request more evidence if necessary or (B) process the case with the outcome being a final interview? I called one attorney who said I file now without my decree and start up an entirely 'new case'. This was the first time I heard this from any attorney and I didn't like the pushiness of them. I felt like I was being pressured more than anything (I know, that's their job it seems!)

In all honesty, I've called numerous attorneys since I'm not really comfortable filing this on my own, even though I'm compiling a large dossier of evidence. By this I mean it's not difficult to compile but I feel legal representation might give me a little more safety for such an important step. I've stated before that I would like to have an attorney represent me if it goes to interview, just to be on the safe side. I've seen some experienced ones who charge very reasonable rates for filing and interview attendance.

There is actually no benefit, that I can think of, in filing now. If you file now with a waiver request then you are effectively telling USCIS that the "condition" on which your conditional residence is based no longer exists, and that you are no longer eligible to be a conditional resident, but that you have a valid basis to qualify as an unconditional resident, or that you at least expect to have a valid basis by the time they adjudicate your petition. By making this declaration to USCIS, you are throwing whatever is left of your two years of conditional status out the window.

You can approximate how long it's going to take USCIS to adjudicate your petition and send that RFE, but you can't predict it exactly. You will have a limited amount of time to respond to the RFE, once it comes. If you don't, you will be out of status and removal proceedings will likely follow. If some unforseen circumstance postpones your final divorce, and you don't send the divorce decree in response to the RFE in a timely fashion, you will have brought a world of pain upon yourself for no good reason.

It would be better to just wait, and deal with things in the order that they happen. Your status won't be terminated as long as you're not divorced yet. Once you've filed the petition, your status won't be terminated as long the petition is pending, so there's no benefit to "getting it into the system" sooner.

Whether or not you use an attorney is a choice only you can make. I've used attorneys for a wide variety of things. I consulted with an attorney before filing my K1 petition, and also hired one to help with document and interview preparation for the consulate stage. I received no revelations from either attorney - everything they told me were things I already knew. Also, the interview prep didn't really prepare my fiancee for the interview. She was only asked four questions, and none of them were among the many dozens the attorney drilled her on, except perhaps "Do you speak English?". Still, having attorneys review my work was good as a sanity check, and the interview prep gave my fiance something to focus on besides her anxiety, so at least she felt she was doing something constructive.

My experience with lawyers is that a good one can be a lifesaver, but you still have to watch them like a hawk. They DO make mistakes, and it's your butt that will be in the grinder if those mistakes aren't caught and corrected. I always insist on having the final say over any actions my attorneys take, or any legal documents they submit on my behalf. In order for me to know if they're doing their job right, I have to spend a considerable amount of time educating myself about the laws that apply to whatever the attorney is helping me with. Obviously, this takes a lot of time, but it greatly increases the chances of getting the outcome you want. If you leave everything in the hands of your attorney then you are not only relying on his knowledge and experience as a lawyer, but also on his understanding your case thoroughly enough to make the right decisions every time. Frankly, I don't trust ANYBODY that much!

[mbuk 2]

There is actually no benefit, that I can think of, in filing now. If you file now with a waiver request then you are effectively telling USCIS that the "condition" on which your conditional residence is based no longer exists, and that you are no longer eligible to be a conditional resident, but that you have a valid basis to qualify as an unconditional resident, or that you at least expect to have a valid basis by the time they adjudicate your petition. By making this declaration to USCIS, you are throwing whatever is left of your two years of conditional status out the window.

You can approximate how long it's going to take USCIS to adjudicate your petition and send that RFE, but you can't predict it exactly. You will have a limited amount of time to respond to the RFE, once it comes. If you don't, you will be out of status and removal proceedings will likely follow. If some unforseen circumstance postpones your final divorce, and you don't send the divorce decree in response to the RFE in a timely fashion, you will have brought a world of pain upon yourself for no good reason.

It would be better to just wait, and deal with things in the order that they happen. Your status won't be terminated as long as you're not divorced yet. Once you've filed the petition, your status won't be terminated as long the petition is pending, so there's no benefit to "getting it into the system" sooner.

Whether or not you use an attorney is a choice only you can make. I've used attorneys for a wide variety of things. I consulted with an attorney before filing my K1 petition, and also hired one to help with document and interview preparation for the consulate stage. I received no revelations from either attorney - everything they told me were things I already knew. Also, the interview prep didn't really prepare my fiancee for the interview. She was only asked four questions, and none of them were among the many dozens the attorney drilled her on, except perhaps "Do you speak English?". Still, having attorneys review my work was good as a sanity check, and the interview prep gave my fiance something to focus on besides her anxiety, so at least she felt she was doing something constructive.

My experience with lawyers is that a good one can be a lifesaver, but you still have to watch them like a hawk. They DO make mistakes, and it's your butt that will be in the grinder if those mistakes aren't caught and corrected. I always insist on having the final say over any actions my attorneys take, or any legal documents they submit on my behalf. In order for me to know if they're doing their job right, I have to spend a considerable amount of time educating myself about the laws that apply to whatever the attorney is helping me with. Obviously, this takes a lot of time, but it greatly increases the chances of getting the outcome you want. If you leave everything in the hands of your attorney then you are not only relying on his knowledge and experience as a lawyer, but also on his understanding your case thoroughly enough to make the right decisions every time. Frankly, I don't trust ANYBODY that much!

Thanks for your very insightful post and words of advice. I strongly agree with what you've posted and welcome the clarification.

Even though I have an ETA of May for the decree, I've and we've spent a lot of time trying to reconcile. However, I'm currently preparing a very large dossier of evidence in good faith so that once my decree is in my hand it will be added and the USCIS will be informed immediately with my I-751 waiver and document of evidence. I may consider hiring an attorney to review and file this on my behalf but like you, I don't trust the knowledge of attorney's since it's my butt on the line and I can't relax and let them take over. We hired one also for our K1 and it helped the pain but we still had to be on our toes and not just sit back and wait. Like you, I've spent a great deal of time collecting factual, circumstantial and anecdotal evidence to try and educate myself.

My only caveat for hiring an attorney is whether or not the USCIS might see this as a red-flag and I need legal advice to cover something up. I personally think it will help protect my sanity as you say although even now I'm still in two minds.

Thanks

mbuk

[JimVaPhuong 4,863]

My only caveat for hiring an attorney is whether or not the USCIS might see this as a red-flag and I need legal advice to cover something up. I personally think it will help protect my sanity as you say although even now I'm still in two minds.

If you read the web sites of prominent immigration attorneys, you'd get the impression that none of this stuff is even possible without hiring them, or at least that things will go much smoother if you do hire them. One attorney's site emphasizes that the odds of a quick and easy approval at each stage are much enhanced if you hire them because, as they describe it, USCIS and consular employees will see that attorney XYZ prepared the package, and they won't bother scrutinizing the package for mistakes or omissions because they'll know that attorney XYZ never makes mistakes. They back this up with testimonials from dozens of satisfied customers.

"When I went to the interview, the consular officer took one look at my paperwork and said 'Oh, you hired attorney XYZ? Ok, you're approved!'"

Makes me wonder how many unsatisfied customers would be happy to provide a rebuttal.

It's really hard to say whether hiring an attorney would raise any red flags with USCIS. My guess is that it would probably not. I would think that a sizeable percentage of the packages they receive are prepared by attorneys. Most people wouldn't have a clue how to handle an immigration case without considerable help. Those of us with a do-it-yourself mentality use resources like VJ, but I think a lot of people still use attorneys, even if there are no real problems with their case.

[rika60607 215]

I am fairly sure that if you send a waiver petition with no divorce decree before the 90 day window, your petition will be returned to you as untimely filed.

According to USCIS I-751 instructions, you can file joint petition within 90 day window only.

If you are a widow/er or have divorced/annulled you marriage you can file at any time before GC expiration.

BUT that would require a death or divorce/anullment certificate, of course.

Then there were people who were not yet divorced at the time of GC expiration and they were falling through the cracks of the system, unable to file ROC.

For them, it is allowed now to file within 90 day window, even if they still don't have divorce decree. But they are not allowed to file ANYTIME like people who have completed divorce.

When your worthless lawyer was saying, "file a new case", he was mistaken that you already filed a joint petition that now needs to be replaced due to your pending divorce. Any time you file anything with USCIS, it's a new case and new case #.

Edited January 8, 2010 by rika60607