Another divorce after a K1 marraige

[Laveau 67]

My best friend married her husb on a K1 visa in 2004. He was granted a 2 year conditional greencard which will expire march-April 2007. The marraige has gone down hill. They have a 1 year old daughter. She is torn between going to his interview in April? 2007. Part of her wants to go (they will live togther until their lease is expired (May 2007)) so he can get the 10 year green card and he can stay to be a part of the kid's life BUT I informed her of the obligation she will have to him if that happens. I recall reading somewhere that if you sponsor a spouse you are respon. to him/her until said spouse has worked 10 years, has left the country, or dies. Is this correct? Or is she already legally binded to him even if she doesn't go to the interview?

[allynella 0]

She is already "legally bound to him", as you say. There's very little she can do at this point. He can file to remove conditions on his own, anyway.

[Yodrak 7]

stlinares,

Has accumulated 40 qualifying quarters of work, not has worked for 10 years (no, they may not be the same thing). Add to the list becomes a US citizen.

As allynella points out, the obligation was incurred when LPR status was granted.

Yodrak

My best friend married her husb on a K1 visa in 2004. He was granted a 2 year conditional greencard which will expire march-April 2007. The marraige has gone down hill. They have a 1 year old daughter. She is torn between going to his interview in April? 2007. Part of her wants to go (they will live togther until their lease is expired (May 2007)) so he can get the 10 year green card and he can stay to be a part of the kid's life BUT I informed her of the obligation she will have to him if that happens. I recall reading somewhere that if you sponsor a spouse you are respon. to him/her until said spouse has worked 10 years, has left the country, or dies. Is this correct? Or is she already legally binded to him even if she doesn't go to the interview?

Edited September 4, 2006 by Yodrak

[Laveau 67]

I forgot that he could drop conditions himself. She feels better about that because she does NOT want to go to that interview and "pretend". I think I have almost talked her out of doing that.

40 quarters...that's right. Thanks.

Approximately when would her husband be eligle to apply for citizenship?

[Yodrak 7]

stlinares,

See the Guide to Naturalization on the USCIS web site.

Yodrak

I forgot that he could drop conditions himself. She feels better about that because she does NOT want to go to that interview and "pretend". I think I have almost talked her out of doing that.

40 quarters...that's right. Thanks.

Approximately when would her husband be eligle to apply for citizenship?

[diadromous mermaid 36]

If divorcing the US citizen, eligibility for naturalisation reverts to 5 yrs rather than 3 years. Taht would be 5 years, after receipt of permanent residency as indicated as "resident since" on his CG. He can apply 90 days prior to that date, provided he's met all other eligibility tests, that is.

[Laveau 67]

Thanks. I was looking at the guide to remove conditions but didn't come across any information about how to remove conditions in the event of a divorce or pending divorce. I know P (the non USC husband) can apply to remove the conditions himself but woud he just follow the directions given in the guide even his marraige has failed?

[meauxna 15]

Thanks. I was looking at the guide to remove conditions but didn't come across any information about how to remove conditions in the event of a divorce or pending divorce. I know P (the non USC husband) can apply to remove the conditions himself but woud he just follow the directions given in the guide even his marraige has failed?

The topic is covered on the main page about Removing Conditions at uscis.gov

Don't rely overly on VJ information.

[diadromous mermaid 36]

Thanks. I was looking at the guide to remove conditions but didn't come across any information about how to remove conditions in the event of a divorce or pending divorce. I know P (the non USC husband) can apply to remove the conditions himself but woud he just follow the directions given in the guide even his marraige has failed?

First, when filing a waiver I-751 (referred to as a waiver because typically this form requires the endorsement of the US citizen) the alien can submit it as soon as a divorce decree becomes available and does not have to wait until the 90-day window prior to expiry noted on the conditional green card.

In the event that the couple divorce well in advance of the filing deadline, no problems, other than that the alien must substantiate that the marriage was bona fide. Documentary evidence of joint mingling of financial, social lives and residence is required for the time the couple were together.

If the parties are separated or in divorce proceedings when the deadline to file arrives, then the most recent instructions from NSC have been for the alien to inform the Service Centre and local office that they are separated and headed to divorce.

Bear in mind that late filing of the I-751, or waiver, renders the alien out of status, and an alien can ultimately end up without work authorisation and subject to removal. I would imagine the "heads up" letter places the Service on notice that the parties are not in default and are attempting to terminate the marriage as soon as is practical. I've noticed on other fora, that aliens in this situation have submitted the I-751 waiver without a divorce decree, and then hoped to replace it with a waiver and divorce decree, when available. Frankly, I can't comment on whether this is prescribed practice, as I haven't seen anything from the Service that indicates this is proper protocol.

[sparkofcreation 0]

I also wanted to point out to the OP that there is almost never an interview for Removing Conditions (especially if jointly filed). Nearly all cases are approved on the strength of the evidence submitted without an interview.

That said, I would say the morally best thing for your friend to do (since it really seems like she wants to do what's right) is to go ahead with the divorce but make sure her husband has copies of everything he needs to remove conditions himself (such as joint bills, bank statements, lease, their daughter's birth certificate). If my husband and I were to divorce, I might also do a notarized affidavit (that ends "I swear under penalty of perjury that the above is true and correct to the best of my knowledge and belief" or something like that) that I entered the marriage in good faith, believe he did also, and we had lived together as husband and wife for [length of time] before deciding the marriage wasn't working and filing for divorce.

However, depending on the state, divorce may or may not be possible if the couple is still living together; however, if they have separate bedrooms and are not having sex, it may be possible for the date they moved into separate bedrooms to count as the date of separation (again, depending on the state).

As people have said above, the I-864 is binding from the moment the AOS is approved; filing the I-751 jointly or not has no effect on it. It is in effect until he becomes a USC, works 40 quarters, abandons his permanent residency, or dies.

[diadromous mermaid 36]

I also wanted to point out to the OP that there is almost never an interview for Removing Conditions (especially if jointly filed). Nearly all cases are approved on the strength of the evidence submitted without an interview.

That said, I would say the morally best thing for your friend to do (since it really seems like she wants to do what's right) is to go ahead with the divorce but make sure her husband has copies of everything he needs to remove conditions himself (such as joint bills, bank statements, lease, their daughter's birth certificate). If my husband and I were to divorce, I might also do a notarized affidavit (that ends "I swear under penalty of perjury that the above is true and correct to the best of my knowledge and belief" or something like that) that I entered the marriage in good faith, believe he did also, and we had lived together as husband and wife for [length of time] before deciding the marriage wasn't working and filing for divorce.

However, depending on the state, divorce may or may not be possible if the couple is still living together; however, if they have separate bedrooms and are not having sex, it may be possible for the date they moved into separate bedrooms to count as the date of separation (again, depending on the state).

As people have said above, the I-864 is binding from the moment the AOS is approved; filing the I-751 jointly or not has no effect on it. It is in effect until he becomes a USC, works 40 quarters, abandons his permanent residency, or dies.

Granted there are many I-751 submissions that are not called in for an interview. But it's not at all "almost never"!

In point of fact, between 10%-50% of all cases are interviewed, even when the submission appears complete and there is no suspciion of fraud.

(2.) WAIVER FORM I-751. The conditional permanent resident, acting alone, may apply (also on Form I-751) for a waiver of the requirement to file the joint petition. See 8 CFR 216.5. The waiver may be filed at any time (i.e., before, during or after the 90-day filing window). The waiver may be sought if the joint petition cannot be filed due to:

• The termination of the marriage through annulment, divorce, or the death of the petitioning spouse;

• The refusal of the petitioning spouse to join in the filing of the petition;

• A conditional resident child being unable to be included in the joint petition of his or her parent (e.g., if the parent died before seeking removal of conditions);

• The conditional resident being unable or unwilling to file the joint petition because the petitioning spouse is an abusive spouse or parent; or

• Any other reason which is provided for in the Act.

Note: The alien may cite multiple reasons for filing the waiver application. In fact, other than the battered spouse/child waiver, all reasons MUST be applied for at once. (The battered spouse/child waiver may be sought either in combination with other reasons listed on the same Form I-751, or on a separately-filed Form I-751.)

(e.) REQUIRED DOCUMENTATION FOR FORM I-751

(1.) Joint Petition. A Form I-751 being filed as a joint petition shall be accompanied by evidence that the marriage was not entered into for the purpose of evading the immigration laws of the U.S. Such evidence may include:

• Documentation showing joint ownership of property;

• Lease showing joint tenancy of a common residence;

• Documentation showing commingling of financial resources;

• Birth certificates of children born to the marriage;

• Affidavits of third parties having knowledge of the bona fides of the marital relationship (Note: the affiant must be available to appear at the joint petitioners’ interview if required); or

• Other documentation establishing that the marriage was not entered into in order to evade the immigration laws of the U.S.

(2.) Waiver. A Form I-751 being filed as a waiver application shall be accompanied by:

• Evidence to establish the facts of the case on which the alien is seeking the waiver; and

• Evidence that the marriage was not entered into for the purpose of evading the immigration laws of the U.S., as described in paragraph (1), if the marriage was not entered into for such purposes. However, be aware that the extreme hardship waiver provision does not require that the applicant establish that the marriage was entered into in good faith.

(F.) Termination of Status for Failure to File. Failure to properly file Form I-751 within the 90-day period immediately preceding the second anniversary of the date on which the alien obtained lawful permanent residence on a conditional basis shall result in the automatic termination of the alien's permanent residence status and the initiation of proceedings to remove the alien from the U.S. Form I-751 may be filed after the expiration of the 90-day period only if the alien establishes to the satisfaction of the director, in writing, that there was good cause for the failure to file within the required time period.

(g.) ADJUDICATING A JOINTLY-SIGNED PETITION.

(1.) Credibility of Evidence. [updated 06-20-2006] The director of the regional service center shall review the Form I-751 filed to determine whether to waive the interview required by the Act.

(a.) Waive Interview and Accept. If satisfied that the marriage was not for the purpose of evading the immigration laws, the director may waive the interview and approve the petition.

(B.) Waive Interview and Deny. If after examining the evidence submitted with an I-751 petition, the Service Center Director finds that the case presents substantial and undisputed evidence that the marriage was to circumvent the immigration laws, the Service Center Director shall deny the case.

(C.) Interview Necessary. In cases where an interview is deemed useful for the adjudication of I-751 petitions, the Service Center Director shall forward the petition, along with the assigned fraud level, to the district director having jurisdiction over the place of the alien's residence.

(2.) ASSIGNMENT OF FRAUD LEVELS. [updated 06-20-2006]

If an interview is deemed necessary, the case is sent to the Service Center's Adjudications Unit and given to an adjudicator to assign a fraud level. The fraud levels of A, B, and C are assigned to the I-751 based on the documentation submitted with the application.

If the adjudicator is fully satisfied that the case is approvable, then a fraud level of C is assigned.

If the adjudicator is less than fully satisfied, but still feels that (based on the information available at the time) the case can be approved, then a fraud level of B is assigned.

If the adjudicator has serious concerns about the approvability of the case and/or wants the applicant and the spouse to be interviewed, then the case would be assigned a fraud level of A.

Reasons for Assigning Fraud Level C. If you assign a fraud level C, it means that there are no technical problems (signatures, missing information, lack of evidence, etc.) and you think the case is approvable (no interview necessary). All required supporting documents are attached and there is no indication of fraud that can be identified in the documents or through the biographic data of the parties involved.

Reasons for Assigning Fraud Level B. Fraud level B cases are those cases which have no technical problems that need correction and have the minimum number of proper supporting documents, but there is something, or an absence of something (which you may or may not be able to articulate) that creates suspicion about the bona fides of the marriage, the veracity of the evidence, etc. The reasons for suspicion are so varied that a concise list cannot be made. An example would be where the I-751 is supported by the minimum required number of documents, however the documents are all of recent origin. Remember, though, that a level B case will be approved if the computer randomly does not assign the case to an interview slot, so do not assign a fraud level B if the application and /or supporting documents are insufficient to approve the case.

Reasons for Assigning Fraud Level A. Fraud level A should be assigned when the adjudicator strongly suspects fraud. Reasons fraud level A might be assigned include:

- the petitioner fails to sign the form;

- there is insufficient evidence;

- a large age difference exists between the spouses;

- the married couple is not living together;

- a prior I-751 was denied;

- the petition was filed untimely without a good reason for being late; or

- any other reasons as the service center director may determine.

Note: The service center adjudicator must indicate when fraud is suspected, rather than a technical omission, to alert the Fraud Detection and National Security (FDNS) Immigration Officer at the District Office.

Once the fraud level is determined, the adjudicator enters the case in the MFAS data base. The district office assigns a percentage to each fraud level.

All fraud level A cases are interviewed. The responsible officer (usually the ADDE) in the district offices may choose to interview between 30% to 100% of all fraud level B cases; and between 10% and 50% of all fraud level C cases. After the case is entered in MFAS, the adjudicator enters the fraud level and the computer determines if the case will be sent for interview depending on the percentage of cases the district office wants to interview.

Note: As of May 25, 2001, users of the Marriage Fraud Amendment System (MFAS) can set up their interview schedules up to six months in advance. Additionally, MFAS will now allow users to delete dates from the Interview Calendar, even if there are cases scheduled for that date. Those cases will automatically return to the "Ready for Interview Scheduling" status.

(4.) The following is a breakdown of the Marriage Fraud cases after adjudication by the service center adjudicator, as indicated in the MFAS support system:

(A.) Case Granted. These are cases for which MFAS has determined that an interview is not needed after the adjudicator entered the fraud level. The case is stamped with the adjudicator's approval stamp and routed to an application clerk who sends out the approval notice.

(B.) Scheduled for Interview. If the computer determines that an interview is required, the MFAS automatically slots the petitioner into an available time slot for the district where the petitioner lives. If all available interview slots are filled for the district office, then a "no schedule" phrase is issued. As soon as an interview time is available, they will be slotted into it. Special care should be taken to verify the address and zip code because the interview site is chosen based on the zip code entered from the I-751.

(C.) Overseas Holds. These are cases where the petitioner and/or spouse live outside the U.S. The case is held pending until the return of the petitioner and/or spouse for a U.S. address to be entered into the computer. Once a U.S. address is known the case can be entered into the computer to see if an interview is required.Form I-751s filed by Conditional Permanent Residents (CPRs) who are currently overseas pursuant to military or government orders and who have valid APO/FPO addresses are not automatically placed on an “overseas hold.” Instead, the director will review the Form I-751 and supporting documentation filed by the CPR and his or her spouse to determine whether or not to waive the interview requirement.

(D.) Terminations. These cases are denied for failure to file. They are put in a 60 day call-up category to give the petitioner and spouse a last chance to file the Form I-751. If they have not filed after the 60 day call-up time frame has expired, the case is routed to the district office for a Notice to Appear to be issued.

(E.) Improperly Classified. These are cases where the petitioner (conditional permanent resident) was incorrectly classified when he/she entered the U.S. (generally because the inspecting or adjudicating officer failed to notice that the alien had been married for at least two years at the time the alien was admitted to the U.S. as a permanent resident or adjusted his/her status to that of a permanent resident). When the adjudicator of the Form I-751 determines that the alien was improperly classified as a conditional resident, the adjudicator should issue the individual a letter telling the alien that he/she was incorrectly classified and advising him/her to go to a district office to file an I-90 for issuance of an I-551 at no cost. The Form I-751 is also processed for a fee refund on Form G-266, and the Form I-751 is counted as a “statistical denial.”

(F.) Battered Spouse. The battered spouse's address is verified and then the case is sent to an adjudicator. The address is verified so that notices are not sent to the wrong person. After updating in the computer the case is sent to a District office for interview.

From,http://www.uscis.gov/lpbin/lpext.dll/inser...ument-frame.htm]Adjudicator's Manual://http://www.uscis.gov/lpbin/lpext.dl...or's Manual://http://www.uscis.gov/lpbin/lpext.dl...or's Manual

Edited September 5, 2006 by diadromous mermaid

[sparkofcreation 0]

I also wanted to point out to the OP that there is almost never an interview for Removing Conditions (especially if jointly filed). Nearly all cases are approved on the strength of the evidence submitted without an interview.

That said, I would say the morally best thing for your friend to do (since it really seems like she wants to do what's right) is to go ahead with the divorce but make sure her husband has copies of everything he needs to remove conditions himself (such as joint bills, bank statements, lease, their daughter's birth certificate). If my husband and I were to divorce, I might also do a notarized affidavit (that ends "I swear under penalty of perjury that the above is true and correct to the best of my knowledge and belief" or something like that) that I entered the marriage in good faith, believe he did also, and we had lived together as husband and wife for [length of time] before deciding the marriage wasn't working and filing for divorce.

However, depending on the state, divorce may or may not be possible if the couple is still living together; however, if they have separate bedrooms and are not having sex, it may be possible for the date they moved into separate bedrooms to count as the date of separation (again, depending on the state).

As people have said above, the I-864 is binding from the moment the AOS is approved; filing the I-751 jointly or not has no effect on it. It is in effect until he becomes a USC, works 40 quarters, abandons his permanent residency, or dies.

Granted there are many I-751 submissions that are not called in for an interview. But it's not at all "almost never"!

In point of fact, between 10%-50% of all cases are interviewed, even when the submission appears complete and there is no suspciion of fraud.

*shrugs* There's only been one person called for interview on this forum for a joint petition since I've been reading it, and dozens of people approved without interview. I have two friends in real life who did K-1s, and neither of them had an I-751 interview. And "between 10% and 50%" is such a huge range that statistically it's pretty much equivalent to saying "no one really knows how many cases are called for interview."

[diadromous mermaid 36]

I also wanted to point out to the OP that there is almost never an interview for Removing Conditions (especially if jointly filed). Nearly all cases are approved on the strength of the evidence submitted without an interview.

That said, I would say the morally best thing for your friend to do (since it really seems like she wants to do what's right) is to go ahead with the divorce but make sure her husband has copies of everything he needs to remove conditions himself (such as joint bills, bank statements, lease, their daughter's birth certificate). If my husband and I were to divorce, I might also do a notarized affidavit (that ends "I swear under penalty of perjury that the above is true and correct to the best of my knowledge and belief" or something like that) that I entered the marriage in good faith, believe he did also, and we had lived together as husband and wife for [length of time] before deciding the marriage wasn't working and filing for divorce.

However, depending on the state, divorce may or may not be possible if the couple is still living together; however, if they have separate bedrooms and are not having sex, it may be possible for the date they moved into separate bedrooms to count as the date of separation (again, depending on the state).

As people have said above, the I-864 is binding from the moment the AOS is approved; filing the I-751 jointly or not has no effect on it. It is in effect until he becomes a USC, works 40 quarters, abandons his permanent residency, or dies.

Granted there are many I-751 submissions that are not called in for an interview. But it's not at all "almost never"!

In point of fact, between 10%-50% of all cases are interviewed, even when the submission appears complete and there is no suspciion of fraud.

*shrugs* There's only been one person called for interview on this forum for a joint petition since I've been reading it, and dozens of people approved without interview. I have two friends in real life who did K-1s, and neither of them had an I-751 interview. And "between 10% and 50%" is such a huge range that statistically it's pretty much equivalent to saying "no one really knows how many cases are called for interview."

It might seem that way, but clearly 10%-50% is just that, isn't it? Bear in mind the volume of petitions each year and that quite possibly being a participant on VJ either means that the alien and US spouse take more care with their submission (ergo their active involvement in querying protocol and procedures) or that they may even derive some benefit from their involvement on VJ

Additionally, these percentages are also governed by the local district offices. We have't taken a reading on just what percentage of VJ members that have had an I-751 interview hail from which district office. It is conceivable that some of the busier offices forge through the petitions, approving many without interviews, while others that have more time, call intervews.

[Yodrak 7]

sparkofcreation,

Are you sure about that? Or is it that you've only seen one person report that they were called for an interview, and you have no idea how many people did not report or did report and you didn't see it.

Yodrak

.... There's only been one person called for interview on this forum for a joint petition since I've been reading it, .....

Edited September 5, 2006 by Yodrak