Separation then Divorce I-751

[Matt&Divorced 0]

We had been married for just on three years now, over the last year the marriage collapsed over a period of 6 months. We have been living in separate rooms for that long, but apparently under VA Law we have to request a legal separation. She also has believes I have entered into the marriage fraudulently because she believes I am gay. Compounding the issue, is the window is now open for my I-751 and I have said I will waive the joint petition, but she will take steps to remove me from the country and submit to USCIS that I kept this information from her and therefore the marriage is a fraud. I've confirmed with my therapist that my identity is sound, that her belief is unfounded. Can she have me removed from the US based on marriage fraud claim and also can she cause issues with my application for removal of conditions using which will now be a false claim of fraud? I didn't want the I-864 to be active on her however this is why she is taking this step. I'm currently working and studying which I want to keep doing here.

[together4evr 360]

She can complain to uscis and it will be your job to prove the fraud claim false. Are you gay? Did you realize it after marriage?

[Hypnos 6,578]

To paraphrase Tom Cruise, "It doesn't matter what she knows, it only matters what she can prove".

If she can prove that you entered into the marriage in bad faith, that you admitted to her you married her solely for the green card (emails, voice recordings, phone conversations, etc.) then yes, you have a problem. Otherwise, if she simply believes it but has no proof, there is nothing she or anyone else can do about it.

You can file for RoC by yourself with a waiver. You will receive an RFE for the divorce decree, and if you cannot provide it within the established timeline then your RoC will be denied and you will probably be placed into removal proceedings. However, once you inform the immigration judge at your hearing that you wish to pursue your RoC application but are waiting on the final divorce decree, the judge will likely continue (postpone) your case until your divorce is final and you have the decree. You can then resurrect your RoC application and move on.

In short, unless your wife has proof then there is nothing she can do to sabotage your status in the US, no matter how much she might want to.

You may also want to consult with an immigration attorney, to explain the situation and confirm that what I have said is correct.

She can complain to uscis and it will be your job to prove the fraud claim false. Are you gay? Did you realize it after marriage?

This is not correct. It is her job to prove that it was a fraudulent marriage, not his job to prove that it wasn't. The only thing he needs to show is that he entered the marriage in good faith.

Edited January 15, 2013 by Hypnos

[VanessaTony 3,567]

1. Can she have me removed from the US based on marriage fraud claim

2. can she cause issues with my application for removal of conditions using which will now be a false claim of fraud?

3. I didn't want the I-864 to be active on her however this is why she is taking this step.

4. I'm currently working and studying which I want to keep doing here.

1. SHE cannot have you removed. She can send them proof of fraud (if she has it) and they will look at it, but if she has no proof, she can't do anything except look like a bitter ex

2. She might make it so you get looked at harder, but even that's doubtful. You are not the first, and i doubt you will be the last, who has a bitter ex who wants to "hurt" you or "punish" you. USCIS knows that breakups suck and people get emotional and vindictive. Only with evidence (or your lack of evidence of bonafide relationship) will it be an issue

3. Nothing she can do about the I-864. There are a few situations where the I-864 is cancelled/revoked and those are explained on the form. Basically if you die, become a USC, give up your GC, or work 40 quarters (about 10 years of full time work).

4. Okay so continue doing it but you need to file or divorce asap. if you don't have the decree in time to file send everything you DO have (proof of bonafide relationship included) and as stated above you will be RFE'd for it. Don't miss the window for filing and good luck!

[together4evr 360]

To paraphrase Tom Cruise, "It doesn't matter what she knows, it only matters what she can prove".

If she can prove that you entered into the marriage in bad faith, that you admitted to her you married her solely for the green card (emails, voice recordings, phone conversations, etc.) then yes, you have a problem. Otherwise, if she simply believes it but has no proof, there is nothing she or anyone else can do about it.

You can file for RoC by yourself with a waiver. You will receive an RFE for the divorce decree, and if you cannot provide it within the established timeline then your RoC will be denied and you will probably be placed into removal proceedings. However, once you inform the immigration judge at your hearing that you wish to pursue your RoC application but are waiting on the final divorce decree, the judge will likely continue (postpone) your case until your divorce is final and you have the decree. You can then resurrect your RoC application and move on.

In short, unless your wife has proof then there is nothing she can do to sabotage your status in the US, no matter how much she might want to.

You may also want to consult with an immigration attorney, to explain the situation and confirm that what I have said is correct.

This is not correct. It is her job to prove that it was a fraudulent marriage, not his job to prove that it wasn't. The only thing he needs to show is that he entered the marriage in good faith.

I think him proving he enter in good faith is the SAME as proving her claim false.

If she has proof that he is gay then he will have issues filing a roc on his own. Not impossible to overcome but any complaint might make USCIS look a bit closer at your case.

[Villanelle 4,122]

First of all, and I dont even know why I have to post this as the OP had already clearly stated hes not gay " I've confirmed with my therapist that my identity is sound, that her belief is unfounded." But even if she had proof he had an affair with a man prior to the marriage or even during the marriage it means nothing. Theres such a thing as bisexual or havent you heard of it?

Her claim of being defrauded would only be valid if she had proof that he was gay and not bisexual. Which is nearly impossible to prove without solid documentation like Hyponos said emails, voice recordings, phone conversations, in which he admits his 'scam'. Theres a huge difference between a gay man marrying a woman to obtain immigration benefits and a bisexual man dating a man at one point in time and then marrying a woman in good faith later on in life.

So for the OP- Do what you have to on your end. You said under VA law you have to request legal separation- have you requested it yet? If not get it moving. Since your window is open to file for ROC, wait until the very last minute to send it in to buy some time, but send in what you do have with the waiver, you can attach a letter explaining the separation situation, but you will be RFEd for the divorce decree. As Hypnos explained " if you cannot provide it within the established timeline then your RoC will be denied and you will probably be placed into removal proceedings. However, once you inform the immigration judge at your hearing that you wish to pursue your RoC application but are waiting on the final divorce decree, the judge will likely continue (postpone) your case until your divorce is final and you have the decree. You can then resurrect your RoC application and move on."

It sounds scary, but if you search the forums you'll see its an unfortunate rather common occurrence as some states have rather long mandatory periods of separation before divorce.

On your spouses end- she can send in whatever kind of complaint of fraud she wants. It should not effect you at all unless its valid.

[Matt&Divorced 0]

Thank you guys for the advice so far, the situation has taken a turn for the worse when I left on Friday to stay somewhere else so I could negotiate the divorce case from a safe place. She has said she has informed ICE via a 'tip' sheet, and one of the check boxes on that sheet is a marriage/fraud report. Here's the link to it http://www.ice.gov/exec/forms/hsi-tips/tips.asp. I figured this is what she has done. So far the advice I've received is that my GC is still valid and have all the rights of a American citizen when dealing with law enforcement, and I have evidence to disprove her claim which is the notes from my therapist.

Should I turn myself in, or contact ICE and then proceed to prove she is making false claim?

[VanessaTony 3,567]

Thank you guys for the advice so far, the situation has taken a turn for the worse when I left on Friday to stay somewhere else so I could negotiate the divorce case from a safe place. She has said she has informed ICE via a 'tip' sheet, and one of the check boxes on that sheet is a marriage/fraud report. Here's the link to it http://www.ice.gov/exec/forms/hsi-tips/tips.asp. I figured this is what she has done. So far the advice I've received is that my GC is still valid and have all the rights of a American citizen when dealing with law enforcement, and I have evidence to disprove her claim which is the notes from my therapist.

Should I turn myself in, or contact ICE and then proceed to prove she is making false claim?

Most of the time ICE doesn't pay attention to bitter exes. If you tried to contact them about it they wouldn't talk to you about it anyway. I also think it looks suss that you would try and contact them.

Basically you do nothing. Ignore her because she's just trying to freak you out. If ICE wants to talk to you about it, they'll find you. Make sure you keep your address up to date with the AR-11.

Her report DOES NOT affect your GC's validity. You are still here perfectly legally. I have to admit I don't think you will ever hear from ICE because unless she has irrefutable proof that you married her for a GC then she's just all talk. I wouldn't worry about her accusations about your sexuality either. If I got a report that said some woman thought her husband was gay and thus just married her for a GC I would laugh. Again, without proof she's sunk.

[Villanelle 4,122]

Turn yourself in? Youre joking right? Who would you turn yourself into and what on earth for??

Here is a memo Vanessa recently posted (because she is awesome like that ) it describes amoung other things how if you file for a waiver for divorce and do not have your final divorce decree, youll get an RFE, if you dont submit it cause you dont have it, youll be referred to a judge, once you do get it, youll be waiver elgible and sent back to them to adjust.

http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/i-751_Filed_%20Prior_Termination_3apr09.pdf

Heres the feild manual on ROC. 3/4s through youll find the parts about waiver filings. Youll see it only matters what your intentions were in entering the marriage. Youll see "It does not matter if the conditional resident’s spouse entered the marriage in good faith, only the intent of the conditional resident him or herself is relevant. Interviewing the conditional resident’s former spouse (either in response to a call-in letter, a field examination or a referral to Investigations) may provide relevant and valuable information on the alien’s intent, or it may only result in a spiteful diatribe...Adjudicators should always be aware of the source and motivation of information provided..."

http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-11685/0-0-0-11691.html

So even if her tip somehow made it through and was deemed worthy of being investigated and they (USCIS)interviewed her- theyre not stupid. The source of the information matters.

Try to relax. Your burden of proof with ROC is that you entered the marriage in good faith.

If I was to advise your spouse- I would tell her the only chance she has at effecting your ROC would be if she had any kind of proof that you entered the marriage for benefits. (Does she?) If she could prove that you lived for lack of the better word the 'gay lifestyle' before the marriage, and only married her because same sex marriages can not get visas/GCs. So your plan was, leave the lifestyle, obtain the GC, leave her, return to the lifestyle. If she can submit evidence that you are 'untrustworthy'- that could be something. It would make them less likely to believe your statements of "I entered this marriage in good faith". But it has to be valid evidence, not just her saying youre a liar. Something like you filed false police reports in the past. (have you?) If she could show you were never really committed to the marriage- you never co-mingled anything, you never lived together, you never had any assets, it was just a marriage on paper- thats something.

Without any of that, her fraud claim is nothing. Its just a lot of I suspect, and that does not hold any weight. You should not be worried about having to overcome "I suspect" from someone who theyre going consider a tainted source of information. If her information was solid information- even from a tainted source, if its solid, then yeah worry and worry hard.

Make yourself a folder if it makes you feel better, put in it your therapists notes and all your ROC proof, just in the rare case ICE comes calling and wants to know whats up- (but if they do PM me your paypal cause Im gonna owe you a dollar)

Focus on your divorce. Dont let her bully you in it with threats of ICE or your status or the 864. If anything consider using the 864 to your advantage if she is your sponsor (?) Maybe even bluff if you have to. It would depend on how familiar she is with the laws regarding it.

[Brian1967## 119]

Hello you know this is a sad situation but if she has proof it is possible for her to make your approval tough. If you have pictures on a social website, deactvate that account asap , defriend her friends or block them. She can write to ice all she wants, but in the end she needs SOLID unemotional proof your gay, or that you were gay before you married, my immigrant spouse told me then 6 months in admitted she was bisexual and had a two year homosexual affair, before we got married. So you have the law on your side and the i864 well yes you can use it as a took or blackmail in divorce but you cannot sue till you are a LPR and current processing is 9 months away now and will get longer as dream act applications start hitting the system. Then you can try to find a lawyer to sue her in federal court which is not cheap maybe a couple of thousands for a retainer. Then another 2 to 3 years in delays and that is if the court will even hear the case, by the time it all happens you will be making above the guidelines and your suit will be a big waste of money. Focus on two things, get the divorce and get a very netrual decrease based on insupportabilty and file for ROC on your own and stay healthy and move on and she will do same. Wishing you the best of luck