Joint filing before removal of conditions while separated?

[groovyaardvark 7]

Hello,

I am wondering if anyone has experience with this situation? Please let me know. It would be much appreciated.

We have been married for a year and a half, and I was granted a conditional green card in February 2011. I am due to submit my paper work for removal of conditions in November 2012. We entered into the marriage in good faith, but we are now separated. She (US citizen) will be overseas for the next 6 months at least. I am told a divorce or more likely in our case annulment can take longer than 6 months in California. We both remain on very good terms and she wants to help me gain permanent residency. My plan is to submit the joint filing in November as normal apart from acknowledging that we are separated.

Apparently this is allowed according to USCIS advisory from 2005. Below:

April 11, 2005

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.

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.

[VanessaTony 3,567]

I would file for divorce now to start the process. Then file for ROC as soon as the divorce is final (or in the 90 days, whichever is sooner). Doing it based on a completed divorce will be a lot simpler than changing it to a waiver petition once the divorce is final (if your GC is still pending).

[groovyaardvark 7]

We just filed for divorce today. 6 months until we have the final decree in hand. I have to submit ROC in November. So should just make it by the skin of my teeth. Although filing the divorce paper work could add an additional few weeks.

If I submitted for ROC say, 50 days before my GC expiry, would my application still be considered on time? (ie. not 90 days exactly)

If the decree does not arrive in time, I will be placed in removal proceedings and have to appeal to an immigration judge? (This sounds very scary and expensive)

Many thanks,

Leigh

[VanessaTony 3,567]

We just filed for divorce today. 6 months until we have the final decree in hand. I have to submit ROC in November. So should just make it by the skin of my teeth. Although filing the divorce paper work could add an additional few weeks.

If I submitted for ROC say, 50 days before my GC expiry, would my application still be considered on time? (ie. not 90 days exactly)

If the decree does not arrive in time, I will be placed in removal proceedings and have to appeal to an immigration judge? (This sounds very scary and expensive)

Many thanks,

Leigh

You have any time in the ENTIRE 90 days to file. You could technically file it on the 89th day (or a day before the expiry date) by overnight mail. Most people just file at the start of the 90 days because they want to get it out of the way ASAP (that's what I would like to do). Your GC expires in Feb. You can file anytime in the 90 days before it expires.

As soon as you file and it's accepted they send you the NOA1 which also serves as the extension for your GC (for one year). So you have PLENTY of time

Your divorce should be final in August/September. Once your divorce is final you should file ROC asap, don't wait for the 90 days. So, if the divorce is final before the 90 days, file. If it's not final but you're close to your card expiring in Feb 2013 then file ROC without the decree but with the waiver. They'll RFE you for the decree.

The RFE for the decree stuff is all moot for you because you should be divorced before your 90 days window but I just want you to have a clear picture. So once you get that final decree, file. Have all your evidence together and then prior to filing double check the fees, and make sure you've got the most recent version of the form and send it in.

[groovyaardvark 7]

Your knowledge is very much appreciated.

I feel much better now knowing that time is on my side.

I will file for ROC as soon as I have the decree in hand.

My understanding is that they are pretty understanding about divorce before ROC? Is this correct?

Thank you so much.

[VanessaTony 3,567]

Your knowledge is very much appreciated.

I feel much better now knowing that time is on my side.

I will file for ROC as soon as I have the decree in hand.

My understanding is that they are pretty understanding about divorce before ROC? Is this correct?

Thank you so much.

Yes this is correct as long as you have sufficient relationship evidence and your case doesn't have heaps of red-flags already.

[lynJer 7]

Your knowledge is very much appreciated.

I feel much better now knowing that time is on my side.

I will file for ROC as soon as I have the decree in hand.

My understanding is that they are pretty understanding about divorce before ROC? Is this correct?

Thank you so much.

HEY LEIGH,

Sad to hear your relationship has come to this....Aint you in PA area?....Hope all goes well mate...

[groovyaardvark 7]

HEY LEIGH,

Sad to hear your relationship has come to this....Aint you in PA area?....Hope all goes well mate...

Hi,

We moved to California 8 months ago. I may eventually head back to Philly when I can afford it.

Thanks for the kind words.