Can someone PLEASE answer this question?

[alexdelucavenice 0]

Hello VJ community,

I have a specific question, one that has been asked many times by other members, however without any input from the gurus! Please help, and let me know your thoughts. Thank you!

- Been in the US legally for 10+ years, met my wife (1st and only marriage) about 5 years ago.

- Married March 2010, filed jointly for I-751 in April 2012 via CSC.

- Ton of evidence: IRS, joint bank accts, credit cards, joint life/health/dental/car insurance, photos, boarding passes of domestic/international travel etc.

- Lately we have been having problems in our marriage, and are working on our issues (counseling etc.). We are still living together and hope to stay together.

However, if one us were to file for divorce and/or if we started living separately, before the approval of my I-751, what actions am I required to take with USCIS? I know about the USCIS memo issued in April 2009, however it doesn't state that I would be required to notify USCIS of divorce proceedings while I-751 is pending. It merely gives me the option to do so, with an RFE response required by submitting my divorce decree in 87 days, which (as you know) I would not be able to meet due to CA divorce laws. I would love to hear your take on this. Very much appreciated.

P.S. I will not apply for naturalization.

[Sandra G. 5,057]

If your divorce is finalized before the form I-751 approval you need to cancel the previous I-751 form and submit the I-751 waiver,you must submit the divorce decree ok.If USCIS approve your I-751 before the divorce is finalized you don't to inform or submit the I-751 waiver.The problem would be if the divorce is granted before the I-751 is approved, then you should notify the USCIS of the divorce.

[alexdelucavenice 0]

If your divorce is finalized before the form I-751 approval you need to cancel the previous I-751 form and submit the I-751 waiver,you must submit the divorce decree ok.If USCIS approve your I-751 before the divorce is finalized you don't to inform or submit the I-751 waiver.The problem would be if the divorce is granted before the I-751 is approved, then you should notify the USCIS of the divorce.

My divorce will not be finalized before I-751 approval (since we're not in divorce proceedings just yet, and in California it takes 6 months before a divorce can be final). What am I required to do if divorce has been filed, but not finalized before I-751 approval?

[Sandra G. 5,057]

Once you are still married even though may be living apart and contemplating divorce you still can file a joint petition, if she decides to cooperate with you of course. There is no provision in the Immigration Law that it be a viable marriage at the time the I-751 is filed or adjudicated, the ONLY requirement is that the marriage was entered in good faith and the marriage wasn't terminated.

If she decided not to cooperate with you then you should file the I-751 waiver and the USCIS will send you an RFE asking the divorce decree, you won't be able to send to USCIS the divorce decree and they will start with your removal proceedings. Once the removal proceeding started you can ask in Court to have form I-751 adjudicated by an Immigration Judge and he/she will put a hold in your deportation and he/she will wait until your divorce is finalized to adjudicate your case.

[Dave&Roza 748]

My divorce will not be finalized before I-751 approval (since we're not in divorce proceedings just yet, and in California it takes 6 months before a divorce can be final). What am I required to do if divorce has been filed, but not finalized before I-751 approval?

Given some of the processing times you cannot say that this will be true. Some ROC have been taking 8-12 months. The answer was given. You filed the I-751, signed and dated it. Everything on that form was true and correct as of the date you signed it. IF for some reason you or your wife files for divorce, then you will have to see which happens first; the divorce is finalized or your ROC is approved. IF the divorce is finalized before the ROC is approved then you deal with informing the USCIS about the divorce.

I hope it all works out for you,

Dave

Edited August 30, 2012 by Dave&Roza

[VanessaTony 3,567]

If your divorce is finalized before the form I-751 approval you need to cancel the previous I-751 form and submit the I-751 waiver,you must submit the divorce decree ok.If USCIS approve your I-751 before the divorce is finalized you don't to inform or submit the I-751 waiver.The problem would be if the divorce is granted before the I-751 is approved, then you should notify the USCIS of the divorce.

Not quite. The OP would have their CURRENT I-751 changed to a I-751 waiver. They wouldn't actually cancel the first one to start all over again (and pay the fees all over again). But as the OP stated, this is only if their divorce is final before approval (and as someone else stated, that's entirely possible given current processing times).

[VanessaTony 3,567]

My divorce will not be finalized before I-751 approval (since we're not in divorce proceedings just yet, and in California it takes 6 months before a divorce can be final). What am I required to do if divorce has been filed, but not finalized before I-751 approval?

You are not "required" to do anything. As long as you're not divorced and you have sufficient evidence you should be fine with ROC (as was stated "bonafide marriage" is required, not "happily ever after"). However if the divorce IS final before ROC is approved then you should change your filing to a waiver filing.

As a side note - when divorce is filed or finalised make sure you double check the paperwork. A VJ member noted that on THEIR divorce papers they just wanted it over and done with and signed the paper saying they'd been separated 6 months, which meant prior to their filing which made it look like they lied. While I'm not sure what happened, don't try and skip steps like that person. Make sure that anything you sign shows that you didn't start all this PRIOR to filing or that it wasn't finalised PRIOR to approval. That's important. Don't wanna look like you lied at any stage.

[alexdelucavenice 0]

You are not "required" to do anything. As long as you're not divorced and you have sufficient evidence you should be fine with ROC (as was stated "bonafide marriage" is required, not "happily ever after"). However if the divorce IS final before ROC is approved then you should change your filing to a waiver filing.

As a side note - when divorce is filed or finalised make sure you double check the paperwork. A VJ member noted that on THEIR divorce papers they just wanted it over and done with and signed the paper saying they'd been separated 6 months, which meant prior to their filing which made it look like they lied. While I'm not sure what happened, don't try and skip steps like that person. Make sure that anything you sign shows that you didn't start all this PRIOR to filing or that it wasn't finalised PRIOR to approval. That's important. Don't wanna look like you lied at any stage.

Thanks everyone, it looks like i'm not "required" to do anything. And yes it is true that my divorce will not be finalized before I-751 approval (considering 1) neither me nor my spouse has yet to file for divorce 2) it takes at least 6 months in California for a divorce to become final 3) we filed jointly for I-751 almost 5 months ago via CSC.) I should be approved in the next 1-3 months. Either way, it seems like this is the answer: if divorce if filed, but not finalized, before I-751 is approved, then I'm not required to take any action. I just wait to get my green card in the mail, while divorce proceedings are in place.

[alexdelucavenice 0]

Once you are still married even though may be living apart and contemplating divorce you still can file a joint petition, if she decides to cooperate with you of course. There is no provision in the Immigration Law that it be a viable marriage at the time the I-751 is filed or adjudicated, the ONLY requirement is that the marriage was entered in good faith and the marriage wasn't terminated.

We already filed jointly via CSC almost 5 months ago (everything in our marriage was nice and rosy). If she were to file for divorce in the next few weeks (before my I-751 approval), does USCIS check every application (via the court system) to see whether or not the married couple is in divorce proceedings?

[alexdelucavenice 0]

Given some of the processing times you cannot say that this will be true. Some ROC have been taking 8-12 months. The answer was given. You filed the I-751, signed and dated it. Everything on that form was true and correct as of the date you signed it. IF for some reason you or your wife files for divorce, then you will have to see which happens first; the divorce is finalized or your ROC is approved. IF the divorce is finalized before the ROC is approved then you deal with informing the USCIS about the divorce.

I hope it all works out for you,

Dave

Thanks, Dave. But CSC ROC takes on average 6 months, and we filed about 5 months ago...so it is safe to assume that ROC approval will come before finalized divorce, considering CA divorces take 6 months and we haven't even filed for divorce yet. What then?

[Dave&Roza 748]

Thanks everyone, it looks like i'm not "required" to do anything. And yes it is true that my divorce will not be finalized before I-751 approval (considering 1) neither me nor my spouse has yet to file for divorce 2) it takes at least 6 months in California for a divorce to become final 3) we filed jointly for I-751 almost 5 months ago via CSC.) I should be approved in the next 1-3 months. Either way, it seems like this is the answer: if divorce if filed, but not finalized, before I-751 is approved, then I'm not required to take any action. I just wait to get my green card in the mail, while divorce proceedings are in place.

Just make certain that you can still receive mail at the address you used on the ROC form as the USPS will not forward the GC to a new address. Just saying that if you have to move due to divorce proceedings before the GC arrives make very certain you can either receive mail or file a change of address with USCIS using the AR-11 form and that you mention you have a pending case.

Dave

P.S. I hope you are right about ROC taking 6 months, but I have seen here on VJ people approaching the 1 year mark and are filing for Naturalization without having the ROC decision yet. So there is a small possibility that you or your wife files for divorce next month and your divorce is finalized before the ROC decision. Let's hope that is not the case, but ROC at CSC have really slowed down lately.

Edited August 30, 2012 by Dave&Roza

[alexdelucavenice 0]

Just make certain that you can still receive mail at the address you used on the ROC form as the USPS will not forward the GC to a new address. Just saying that if you have to move due to divorce proceedings before the GC arrives make very certain you can either receive mail or file a change of address with USCIS using the AR-11 form and that you mention you have a pending case.

Thanks for pointing that out, and yes I will make sure I still have access to mail, or will change my address online at USCIS web site if I have to move out. Looks like I can breath easy.

[Sandra G. 5,057]

Vanessa&Tony I always post here what the Immigration Law States not how some Local USCIS offices adjudicate their cases. The Immigration Law is clear you MUST withdraw the form I-751 form and submit form I-751 waiver. A few Local offices accept to convert the I-751 to I-751 waiver, but a descent Lawyer never advice to file I-751 based in circumstances but based in Immigration Law.

Edited August 30, 2012 by sandranj

[VanessaTony 3,567]

Vanessa&Tony I always post here what the Immigration Law States not how some Local USCIS offices adjudicate their cases. The Immigration Law is clear you MUST withdraw the form I-751 form and submit form I-751 waiver. A few Local offices accept to convert the I-751 to I-751 waiver, but a descent Lawyer never advice to file I-751 based in circumstances but based in Immigration Law.

Sandranj, if mentioning someone specially it is considered polite to "reply" to their post so they are notified of a response.

Please provide the law you are referring to. I am (as are others) referring directly to the USCIS memo here: http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/i-751_Filed_%20Prior_Termination_3apr09.pdf where they state on page 3, top paragraph. Specifically:

... the ISO specifically asks the CPR to provide a copy of the final divorce decree or annulment along with a request stating he or she would like to have the joint filing petition treated as a waiver petition. This affords the CPR an opportunity to provide evidence that the proceedings have been finalized and it affords the CPR an opportunity to request a waiver to the joint filing without refiling.

Please read the full memo to get the full idea.

In short, sending the decree along with a letter requesting that the joint petition be changed to a waiver petition is in accordance with this memo and perfectly legal.

This advice saves the OP money and time (as opposed to your advice of cancelling and refiling a new petition) which of course would be everyones preference, and it's based on USCIS facts written in plain English.

[alexdelucavenice 0]

Sandranj, if mentioning someone specially it is considered polite to "reply" to their post so they are notified of a response.

Please provide the law you are referring to. I am (as are others) referring directly to the USCIS memo here: http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/i-751_Filed_%20Prior_Termination_3apr09.pdf where they state on page 3, top paragraph. Specifically:

Please read the full memo to get the full idea.

In short, sending the decree along with a letter requesting that the joint petition be changed to a waiver petition is in accordance with this memo and perfectly legal.

This advice saves the OP money and time (as opposed to your advice of cancelling and refiling a new petition) which of course would be everyones preference, and it's based on USCIS facts written in plain English.

I have to note that you both keep focusing on what happens if my divorce is finalized before ROC approval. I know what steps need to be taken in that scenario (by the way Vanessa&Tony are correct). However, that is not my question. The one and only question I had was: "What (if anything) do I need to do if my USC wife files for divorce before my I-751 is approved?" Please assume divorce is not finalized before ROC approval, and I am not looking to file for naturalization. Thank you for all your input so far.