Just entered 90day window for filing ROC, but divorcing

[KLS2010 30]

I've been on this forum for a few years now, and had seen the stories from members getting divorced. While reading those posts though, I never thought that one day I would be writing my own......

My husband and I were married in July 2010.

We filed for CR-1 and I entered the US and received my GC in Aug 2011.

My GC is due to expire at the end of August, so the 90 day window to file for ROC just opened at the end of May.

We have decided that things are just not working out and we are getting divorced. My husband filed the divorce petition on Monday. We will have to wait a minimum of 61days in order to finalize the divorce.

So my question is - what now?

I know I can file for ROC on my own based on entering the marriage in good faith, but it ending in divorce. But if the divorce isn't going to be finalised until at least August, this would be cutting it close to the expiration date of my GC (if it was even finalised immediately, it may not be). Could I just file anyway, before the divorce is finalised? Does my being within the 90day window for filing ROC make any difference to when I should file?

My second issue is - what happens after I file? What am I going to need to do? I know I will need to do biometrics, but what about an interview? Is that likely? Not that I am worried about proving the marriage was in good faith, I have evidence of joint bank accounts, joint tax returns, mail at same address, pictures, etc. My husband and I are still on somewhat decent terms, so it's possible that he may even be willing to write an affidavit stating the marriage was genuine, but just didn't work out. My problem with what happens after is that I may need to go back to Australia at some time in the near-ish future. My mother has to have back surgery and it's likely that I will need to be there to help her for awhile post-surgery as she doesn't have any other family that live close by. She is currently on a waiting list for the surgery, so I don't even know when it would be, but I know that ROC processing is taking around 9mths give or take from what I'd heard, and I'm sure her surgery will be within that time frame.

So what would happen then if I was in Australia when I needed to do biometrics and/or an interview?

Any thoughts would be appreciated.

[Christi85 86]

I've been on this forum for a few years now, and had seen the stories from members getting divorced. While reading those posts though, I never thought that one day I would be writing my own......

My husband and I were married in July 2010.

We filed for CR-1 and I entered the US and received my GC in Aug 2011.

My GC is due to expire at the end of August, so the 90 day window to file for ROC just opened at the end of May.

We have decided that things are just not working out and we are getting divorced. My husband filed the divorce petition on Monday. We will have to wait a minimum of 61days in order to finalize the divorce.

So my question is - what now?

I know I can file for ROC on my own based on entering the marriage in good faith, but it ending in divorce. But if the divorce isn't going to be finalised until at least August, this would be cutting it close to the expiration date of my GC (if it was even finalised immediately, it may not be). Could I just file anyway, before the divorce is finalised? Does my being within the 90day window for filing ROC make any difference to when I should file?

My second issue is - what happens after I file? What am I going to need to do? I know I will need to do biometrics, but what about an interview? Is that likely? Not that I am worried about proving the marriage was in good faith, I have evidence of joint bank accounts, joint tax returns, mail at same address, pictures, etc. My husband and I are still on somewhat decent terms, so it's possible that he may even be willing to write an affidavit stating the marriage was genuine, but just didn't work out. My problem with what happens after is that I may need to go back to Australia at some time in the near-ish future. My mother has to have back surgery and it's likely that I will need to be there to help her for awhile post-surgery as she doesn't have any other family that live close by. She is currently on a waiting list for the surgery, so I don't even know when it would be, but I know that ROC processing is taking around 9mths give or take from what I'd heard, and I'm sure her surgery will be within that time frame.

So what would happen then if I was in Australia when I needed to do biometrics and/or an interview?

Any thoughts would be appreciated.

Sorry to hear about your divorce. Hopefully this decision will be for the best.

You are right that you can file ROC on your own. You will have to request a divorce waiver - there is an option for that on the petition.

I hope someone else can say for sure, but I wouldn't think you would need a final divorce to file. If you have proof of your court filing, I would think it would suffice to send a copy of that, maybe along with a cover note saying you filed for divorce very recently and it has not yet been finalized. I'm sure they've seen that before.

If I were you, I would apply sooner rather than later, especially since you anticipate having to travel to Australia in the coming months. Better to get started (and done) with the process earlier.

Within 30 days of filing you should have your extension letter (NOA1) in hand, so you will be able to travel with that and your expired green card.

Biometrics appointments tend to take place within 30-60 days of filing, and the letter usually gives you 2-3 weeks' notice. However, if you need to travel abroad before your biometrics appointment, it is usually possible to do a walk in at an earlier date and have it done there and then. As long as you have received the bio appointment letter you can pretty much do a walk in any time. However, it is not advisable to leave the country without having completed biometrics, so try your best to have that done before you leave for Australia.

Now, on to the tricky bit: filing ROC with a divorce waiver in all likelihood will get you an interview. ROC is primarily designed for joint filing, so anything that strays from that tends to get more attention and closer scrutiny. This is nothing to worry about, as you seem to have solid proof of a bona fide marriage (and if your ex husband agrees to sign an affidavit for you attesting to the legitimacy of your marriage, so much the better). The tricky bit is if the interview is scheduled while you're in Australia. Frankly, you only have two options: a) skip the trip until ROC is completed, even though that could mean missing your mother's operation date, or b)have someone check your mail regularly while gone, and if you receive an interview appointment letter while in Australia, contact USCIS and reschedule for after you are back, knowing that this could delay the process by up to 2-3 months or so, depending on when they reschedule you for. Both options suck, but it's up to you.

Based on other members' experience, interviews tend to be requested sooner rather than later, so a lot of VJ members have gotten interviews about 3-5 months from filing, which is much shorter than the average ROC wait (this is the good part of getting an interview). Plus if your case is backed well, an approval is often granted right there and then at the interview, essentially cutting your waiting time to about half.

I hope this helps. Good luck with your petition and I'm sure you will have no problems as long as you can prove the legitimacy of the marriage - which sounds like you can.

[Hypnos 6,576]

You can file for RoC by yourself, as you know, by requesting a waiver of the joint filing requirement. The problem is that if you do so and do not enclose a copy of the final divorce decree (which you cannot provide, since your divorce isn't final yet) then you will be RFE'd for it. If you are not able to respond to the RFE within the allotted deadline then your RoC will be denied and you will likely receive a Notice To Appear in Immigration Court.

At this point you would go before the immigration judge and explain your situation, that you are intending to apply for RoC but did not / do not have a copy of your divorce decree on hand yet. The judge should then continue (delay) your hearing for a few months, by which point you should have the decree in your possession. You can then "resurrect" the RoC application with the immigration judge and proceed with it.

It's a cumbersome system, but unfortunately that is the procedure for someone who needs to file for RoC but does not yet have a final decree of divorce.

Edited June 7, 2013 by Hypnos

[Dave&Roza 748]

Since you already know you will be divorced, I would file the ROC with the divorce waiver. When they finally get to your case you will need to supply the final divorce decree which you should have given the processing times of late. The RFE should give you 89 days to provide the divorce decree. That way you get the process going and can get your 10 year GC sooner.

Good luck,

Dave

[VanessaTony 3,567]

My husband and I were married in July 2010. We filed for CR-1 and I entered the US and received my GC in Aug 2011.

My GC is due to expire at the end of August, so the 90 day window to file for ROC just opened at the end of May.

We have decided that things are just not working out and we are getting divorced. My husband filed the divorce petition on Monday. We will have to wait a minimum of 61days in order to finalize the divorce.

So my question is - what now?

I know I can file for ROC on my own based on entering the marriage in good faith, but it ending in divorce. But if the divorce isn't going to be finalised until at least August, this would be cutting it close to the expiration date of my GC (if it was even finalised immediately, it may not be). Could I just file anyway, before the divorce is finalised? Does my being within the 90day window for filing ROC make any difference to when I should file? Personally based on your situation I would file your ROC about 2 weeks/a month before your GC expires. This gives you more time to get the decree. You file ROC without the decree but as others said, you will get an RFE for it and have about 89 days to respond to continue your processing.

My second issue is - what happens after I file? What am I going to need to do? I know I will need to do biometrics, but what about an interview? Is that likely? Not that I am worried about proving the marriage was in good faith, I have evidence of joint bank accounts, joint tax returns, mail at same address, pictures, etc. My husband and I are still on somewhat decent terms, so it's possible that he may even be willing to write an affidavit stating the marriage was genuine, but just didn't work out. You may or may not get an interview (waiver filing makes no difference) but you WILL have biometrics of course and will need to be in the country for that.

My problem with what happens after is that I may need to go back to Australia at some time in the near-ish future. My mother has to have back surgery and it's likely that I will need to be there to help her for awhile post-surgery as she doesn't have any other family that live close by. She is currently on a waiting list for the surgery, so I don't even know when it would be, but I know that ROC processing is taking around 9mths give or take from what I'd heard, and I'm sure her surgery will be within that time frame. You should have someone checking your mail while you're out of the country. If there's any way to delay her surgery, you may need to do that. Once you've replied to the RFE (if you don't have the decree in time for filing) it will pretty much just be waiting.

So what would happen then if I was in Australia when I needed to do biometrics and/or an interview? You can postpone biometrics and interview (if you have one). Best not to do it for a crazy long time though, so if your mum needs a couple more months support if you get an interview, you MAY need to just come back and get the interview over with and return to Australia again.

Oh KLS i'm sorry! I've responded in red above.

It's pretty much going to be a juggling game. Get your packet together (don't date it yet though) and wait. If the divorce is finalised in time then you can file with the decree. If it's not finished in time file without the decree as close to your expiry as safe (no shorter than 2 weeks to be safe).

Biometrics is about a month from filing (if you need to leave to go look after your mum, try a walk-in with proof of her surgery and your need to go be with her, hopefully they'll let you do it), and IF you have an interview it won't be for about 6 months or so and whether or not you return or reschedule will depend on your situation at the time.

Just make sure someone is checking your mail.

[KLS2010 30]

Thank you all for you replies and advice. I appreciate you all taking the time to respond.

[KLS2010 30]

Oh KLS i'm sorry! I've responded in red above.

It's pretty much going to be a juggling game. Get your packet together (don't date it yet though) and wait. If the divorce is finalised in time then you can file with the decree. If it's not finished in time file without the decree as close to your expiry as safe (no shorter than 2 weeks to be safe).

Biometrics is about a month from filing (if you need to leave to go look after your mum, try a walk-in with proof of her surgery and your need to go be with her, hopefully they'll let you do it), and IF you have an interview it won't be for about 6 months or so and whether or not you return or reschedule will depend on your situation at the time.

Just make sure someone is checking your mail.

So what's the reasoning behind you suggesting I wait until close to my GC expiration to file? Just that it will buy more time for me to have the divorce decree, since I'm still within the allowed timeframe to file?

Yes, very much a juggling game. Difficult to know what to do when, since I don't know when her surgery will be, and I want to make sure that I do all the immigration paperwork right so that I don't get denied. I'm worried that I will have to leave at short notice, and then not respond in time to an RFE or appointment and then not be allowed back in.

Guess for now I will get the paperwork together and ready to go. I guess if I have to leave before the divorce is finalised, then I will just have to send it before I leave and wait for the inevitable RFE. Or could I possibly leave the packet with a friend and then wait and see if the divorce is finalised in time? If so, they could maybe put a copy in the packet and send it, if not, then tell them they need to send it by around the 7th Aug. (I think 61 day minimum for the divorce will put it around Aug 3rd, if it was finalised immediately).

But if I wait to file but then have to leave at short notice - what about my extension letter?

[VanessaTony 3,567]

So what's the reasoning behind you suggesting I wait until close to my GC expiration to file? Just that it will buy more time for me to have the divorce decree, since I'm still within the allowed timeframe to file?

Yes, very much a juggling game. Difficult to know what to do when, since I don't know when her surgery will be, and I want to make sure that I do all the immigration paperwork right so that I don't get denied. I'm worried that I will have to leave at short notice, and then not respond in time to an RFE or appointment and then not be allowed back in.

Guess for now I will get the paperwork together and ready to go. I guess if I have to leave before the divorce is finalised, then I will just have to send it before I leave and wait for the inevitable RFE. Or could I possibly leave the packet with a friend and then wait and see if the divorce is finalised in time? If so, they could maybe put a copy in the packet and send it, if not, then tell them they need to send it by around the 7th Aug. (I think 61 day minimum for the divorce will put it around Aug 3rd, if it was finalised immediately).

But if I wait to file but then have to leave at short notice - what about my extension letter?

Yep to give you more time to get the decree.

If you leave before you get the extension letter (receipt) your friend can mail it to you (after making a copy for safe keeping but mailing you the original), you can get a travel letter from the embassy (to permit you to enter the US), you can also try and get an I-551 stamp in your passport if it's taking particularly long (but you shouldn't have to).

Yep you could leave the packet with a friend if you need to.