Separation before I751 approved

[newlo 0]

Hello everyone,

I had a question regarding immigration status if you separate from your spouse after you file your I751 jointly, but before it is approved.

It seems likely that I will separate from my USC husband. It was a completely legitimate marriage, but for a variety of reasons it is just not working out, although I know my husband disagrees. I'm very sad and scared about next steps, but I am trying to make sure I know what I'm up against before I make any moves towards the point of no return.

We filed jointly to remove conditions early in the year. I have done research on the forums and I know that I could refile if we finalised a divorce under a waiver, but we already seem to be far along in the process. I have received an RFE and am preparing to send it back this week, because as of right now we are still married. Having received the RFE it seems likely they will adjudicate my case pretty soon. If I am simply awarded the green card then I guess I am good, but if I am called to interview and we have decided to separate at that point I have no idea what to expect or what I should do. Where I live it seems that you are required to be separated from your spouse for 6 months before divorce is finalised, so even if I changed my application to be under waiver and I received an RFE for the decree it is unlikely I could return it in time. In addition I do not have the money to refile; filing in the first place took the last of my savings.

Ironically I would not plan to stay in the States long-term if me and my husband separate; but being forced to leave immediately because my GC is denied would cause another myriad of problems. Feeling really stuck between a rock and a hard place here.

I was just wondering if anyone had similar experiences or advice. I know I have been a bit vague, but everything is in limbo for me at the moment and I am just trying to figure out my position before I start making my moves. Any advice appreciated!

[Brian1967## 119]

If your soon to be ex and you divorce and he has canceled the I864 or he does not show for AOS interview your green card will be denied and you can be placed in removal proceedings. However, you are in such a young marriage I encourage you and your husband to "double down" and work hard immigrant marriages are not easy sometimes and you have to work hard even harder than a "normal" marriage, if you divorce and you see this as the only option cancel the current petition and refile after the divorce is final on your own.

[Brian1967## 119]

OP....will you're husband go to marriage counseling, if so head that route. I am sorry that you and he are going through this struggle and I hope both of you remember what brought you both together.

[VanessaTony 3,567]

If your soon to be ex and you divorce and he has canceled the I864 or he does not show for AOS interview your green card will be denied and you can be placed in removal proceedings. However, you are in such a young marriage I encourage you and your husband to "double down" and work hard immigrant marriages are not easy sometimes and you have to work hard even harder than a "normal" marriage, if you divorce and you see this as the only option cancel the current petition and refile after the divorce is final on your own.

The first part of your post does NOT apply to the OP who has, as their OP states filed for I-751. The USC CANNOT cancel their I-864 once the GC has been issue (which has already happened). The OP already has a GC.

The second part is also wrong. The OP does NOT need to refile once the divorce is final, and does NOT need to cancel the current petition.

[VanessaTony 3,567]

Please ignore the other advice, it does not apply to you.

As you correctly stated, if you get your GC before your divorce is final, then you're fine.

If you get called for interview then you MUST attend the interview. Obviously if your husband is not with you they cannot approve you on a joint filing. At that time you will have either filed for divorce, or will be. Tell the officer that and provide them with a written request to change your filing to a divorce waiver filing. There is no need to re-file.

If your divorce is final BEFORE you get the GC you MUST change your filing to a waiver filing. You would do this by making an infopass and providing them with a letter to change the filing.

The issue that you are concerned about is that the divorce won't be finalised in time. That's common. Once you change to a waiver filing you will get an RFE for the decree. You will have 86 days to provide the decree. If you don't have it in time, they will deny your ROC. DON'T PANIC. You will get a letter to go before an immigration judge. At that meeting (which you MUST attend) you will advise the judge that you are waiting for your divorce to be final. The judge will order the ROC on hold until you can provide the decree. Once you provide the decree they will continue processing your file.

You said that you will leave the US but don't want to do it on immigrations timeline. If you end up getting denied (before the immigration judge meeting) then you will still be fine to stay in the US while that process is going through.

You would not be the first, or last person to have to go through that process so try not to stress about it too much.

Honestly no matter which way it goes it will be up to you when you leave the US.

[Villanelle 4,122]

I agree with Vanessa.

You have a few possible routes. One would be if the divorce is finalized before the petition is approved, but based on the fact that you havent even filed yet, and there is a 6 month wait to get it finalized, and you sent in your application for ROC 'early in the year' and average processing is around 9 months, its unlikely youd have a final divorce decree in time. So that route of you must contact them to alert them to change from a joint filing to a divorce waiver filing probably wont be necessary.

You should refer to this memo here - mainly the bottom of page 2 and on-http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/i-751_Filed_%20Prior_Termination_3apr09.pdf

However this is contingent upon your spouse attending the joint interview with you. If you do get called for the joint interview and your spouse will not attend it with you (for whatever reason) in the interview, you will be switched automatically to the above waiver and it become rather tricky. Youd be given so many days to come back and show a divorce decree, which based on your timeline you still probably wouldnt have. So what happens? It snowballs into a mess of for lack of better words "temp denials" where youll find yourself going to immigration court and getting extensions showing youre in the process of getting a divorce and just need more time to get the actual final divorce decree. Youll always have status, its just messy and a headache.

If your spouse is willing to attend the interview with you, as the interview notice will require both of your presences, then its a completely different story. You would both attend it and answer the questions honestly as required by law. If you are separated or considering divorce, or even if divorce has been initiated, thats fine. They will still evaluate the marriage based on the bonafides of it by interviewing you both and reviewing the evidence you submitting and possibly additional evidences you brought with you. It specifically states they can not hold the fact that you are separating against you.

So providing your spouse does not notify them on their intent to not attend the joint interview or in order words withdraw their support of the joint filing of the 751 which would force your petition to be switched to a waiver filing, the ball is basically in your court for right now. (Until you find out if an actual interview is going to happen, when again, its up to your spouse, who depending on whether or not they are still willing to attend if you are separated will decide if you will be able to forced into the waiver application or able to continue on the joint application)

[vegano 5]

VanessaTony, capri, thanks for sharing such a useful information.

Newlo, it's been 8 months since you posted your case. I'm in a similar situation right now and would love to hear what happened with your case, what did you do at the end, I would be grateful if you share your experience witht this complicated kind of cases.

Te agradezco cualquier informacion que puedas compartir de tu caso.