Motion to Reopen - US Citizen wants to file divorce

[mychelle 1]

- the couple received a letter asking if they are abandoning their I-751 because they did not respond to and RFE

- they filed the Removing Conditions in Nov 2009, did biometrics, no RFE was received

- the letter says they can file Motion to Re-open must respond in 30 days

- they have new evidence, 2009 Tax Return, Insurance info, bank records

- they have been living separately after they filed the I-751 but their relationship was amicable(she moved out because they were living with his parents. she does not get along with the parents and he does not want to move out. now his family is telling him he can be charged a felony if he helps her with the Motion to Re-open.)

- he (the US Citizen) wants to file for divorce and refuse to file Motion to Re-open

what are the Conditional Permanent Resident options? she already has a full-time job and does not want to go back but if worse case scenario she will.

[rika60607 215]

If he wants divorce, she has no other options, but to file I-751 with a waiver.

Hopefully she can file the Motion to reopen by herself?

[justashooter 430]

the immigrant needs to:

1. file an AR-11 change of address form

2. notify Nebraska Service Center and the Service Center they originally filed 751 with that the couple is now seperated, and request a conversion of the petition to acknowledge the change in status.

3. Reply to any RFE that is subsequently sent.

what will happen is that the regional service center will convert the petition at no cost, and will send the immigrant an RFE for a final divorce decree. they will allow an 87 day response period. if a decree is not available within this period, the immigrant should respond with the reason such is not available, citing waiting preiods required by state law after seperation, showing evidence of a filing, or some such documentation. the service center will then commence deportation action, of which the immigrant will be notified. if the immigrant appears and petitions for a continuance on basis of reasonable evidence a continuance will be granted. when the final doc is available the immigrant will be interviewed and ajudicated on basis of their individual case.

this process allows the immigrant a path to adjust if seperated or divorced. it also allows the USC to be honest in the process as to the current state of the relationship.

if a seperation has occured and the USC lies to USCIS about the material fact and is found out, they may be indicted and convicted of defrauding the US gov't for immigration benefits, which is a federal felony, and will result in jail time. the immigrant may also be jailed, and will surely be deported in such cases.

with the risks involved, it's so much wiser to do it the legal way.

http://www.aa-law.com/images/stories/i-751-condition-nscflash19-2005.pdf

April 11, 2005

USCIS NSC Flash #19-2005

Revised Revision to NSC Flash #6-2005

Please note that additional clarification has been provided in regard to NSC News

Flash #18 dated March 30, 2005 that amended News Flash #6 dated December

27th, 2004.

The Effect of Separation/Divorce on Pending I-751 Petitions to Remove the

Conditions on Residence

• If the petitioner and beneficiary are divorced at the time the I-751 should be filed,

the beneficiary should file the I-751 (only s/he needs to sign) and mark "d" in Part

2.

• If the petitioner and beneficiary filed an I-751 petition jointly but:

a)separate before a decision is made on the I-751, the beneficiary should notify

the NSC that he/she is currently separated by mailing the explanation to the NSC

at PO Box 82521, Lincoln NE 68501-2521.

(This is probably for chicago area people, so copy NSC and whichever regional service center you originally filed at)

b)get divorced while the I-751 petition is pending, the beneficiary should notify

the NSC that he/she is divorced, and submit a copy of the divorce decree to the

NSC at PO Box 82521, Lincoln NE 68501-2521.

• If the petitioner and beneficiary are separated or have initiated divorce

proceedings at the time the I-751 is due to be filed, the petitioner and beneficiary

may still file a joint petition if the petitioner is willing to sign the petition. If the

petitioner is not willing to sign a joint petition, the beneficiary is not eligible to file

a petition requesting a waiver of the joint filing requirement due to divorce until

the divorce is final UNLESS abuse is the basis for such a filing. The alien’s

status may be terminated because s/he has been unable to file a timely I-751

and s/he may be placed in removal proceedings.

Petitioners and beneficiaries are reminded that required supporting documentation

must accompany all petitions.

Reprinted: Asonye & Associates, Attorneys At Law, Chicago, Illinois (www.aa-law.com)

[mychelle 1]

Thanks for the replies guys. I already told her to seek help from an attorney and even gave her the list of community centers that might offer pro bono immigration help. I spoke to a law student [actually already finished but not yet passed the CA bar] who worked for an immigration attorney and he said that, due to the fact that she already got a notice that they abandoned the I-751 and that she had to respond in 30 days, she might not be able to stay in the US if he files for divorce now.

Is the motion to re-open can only be filed by the US citizen/petitioner? If she can self-petition, should she have to wait until the divorce is final?

[justashooter 430]

she should respond before the 30 days is up with a new filing or a request for conversion of the old filing. the divorce decree can wait. she needs to act now before they put her in deportation proceedings. pending divorce she can get a stay of deportation, should such be entered after her second filing is recognised. she is gonna need a lawyer for this, as she obviously can't manage it by herself, and it is not your responsibility.