Everything was good until she confessed me... Now confused with I-751.

[vegano 5]

Good morning everyone. I'll try to be brief, so you don't get bored reading another soap opera.

- I married my USC wife on Sep/2011.

- Green card approved and issued on May 2012.

- Being soon to celebrate our 2nd anniversary, my wife confessed me she had an affair. After a lot of talking we decide to separate from each other. I don't want to get into details unless it's necessary, thanks for understand.

- The jointly I-751 was supposed to be sent between March and May/2014 (the 90 days period).

- When this kind of situation happens, I had understood that couples file the divorce and the beneficiary sends the I-751 by himself (selecting Part 2. / 1.d) once he gets the divorce decree and the 90 days period is active.

- My concern now is that in the state where we live you need to be completely separated of your spouse for an entire year before applying for a legal divorce. This is absurd, but anyway. This means that if all goes as it goes, we'll be getting the divorce decree for November or December of 2014. One year or separation plus about 2 months of the divorce paperwork process.

- Now my question is, bearing that in mind, what should I do when the 90 days period arrives? My wife and me are we still going to be legally married, but separated.

1) Should I fill out the I-751 jointly (Part 2 / 1.a.) ?

2) Should I fill it out by myself and request a waiver (Part 2. / 1.d)?

- I talked vaguely to an immigration lawyer, and he told me that I should fill out the I-751 by myself requesting a waiver (Part 2. / 1.d).

- He also told me that I should do it now or since the moment that the separation or the divorce process starts.

- He also told me that I should send along with the I-751 form, all the evidence we have to prove that our relationship was in good faith.

- I asked him, "what about the divorce decree"? I had understood that, in my case, I should send it along with the form and the paperwork, and he told me that it doesn't matter, that USCIS will ask me for the divorce document before they approve the case and that it will be probably 8 months or more after I send all files. He also told me that USCIS will issue me a receipt extending me the green card by 12 more months. END.

- Being honest, I'm more confused now than before I talked to him. I've read that if you send too early the I-751 (before the 90 days period), it will be rejected and send it back to you. So, I don't understand why he told me that or maybe I understood him in a wrong way.

- When the 90 days period arrives, I'm still going to be married with my wife, so, my logic says that then I should fill it out Jointly and then explain to USCIS the situation, or maybe I am wrong, I don't really know how it works, and that is why I'm writing here, needing of the advice of those who have more experience and knowledge in the area.

I will appreciate it any help, advice, link, or whatever it helps me to understand what is my next step in terms of immigration paperwork.

Thanks for reading.

[Navyk 78]

Good morning everyone. I'll try to be brief, so you don't get bored reading another soap opera.

- I married my USC wife on Sep/2011.

- Green card approved and issued on May 2012.

- Being soon to celebrate our 2nd anniversary, my wife confessed me she had an affair. After a lot of talking we decide to separate from each other. I don't want to get into details unless it's necessary, thanks for understand.

- The jointly I-751 was supposed to be sent between March and May/2014 (the 90 days period).

- When this kind of situation happens, I had understood that couples file the divorce and the beneficiary sends the I-751 by himself (selecting Part 2. / 1.d) once he gets the divorce decree and the 90 days period is active.

- My concern now is that in the state where we live you need to be completely separated of your spouse for an entire year before applying for a legal divorce. This is absurd, but anyway. This means that if all goes as it goes, we'll be getting the divorce decree for November or December of 2014. One year or separation plus about 2 months of the divorce paperwork process.

- Now my question is, bearing that in mind, what should I do when the 90 days period arrives? My wife and me are we still going to be legally married, but separated.

1) Should I fill out the I-751 jointly (Part 2 / 1.a.) ?

2) Should I fill it out by myself and request a waiver (Part 2. / 1.d)?

- I talked vaguely to an immigration lawyer, and he told me that I should fill out the I-751 by myself requesting a waiver (Part 2. / 1.d).

- He also told me that I should do it now or since the moment that the separation or the divorce process starts.

- He also told me that I should send along with the I-751 form, all the evidence we have to prove that our relationship was in good faith.

- I asked him, "what about the divorce decree"? I had understood that, in my case, I should send it along with the form and the paperwork, and he told me that it doesn't matter, that USCIS will ask me for the divorce document before they approve the case and that it will be probably 8 months or more after I send all files. He also told me that USCIS will issue me a receipt extending me the green card by 12 more months. END.

- Being honest, I'm more confused now than before I talked to him. I've read that if you send too early the I-751 (before the 90 days period), it will be rejected and send it back to you. So, I don't understand why he told me that or maybe I understood him in a wrong way.

- When the 90 days period arrives, I'm still going to be married with my wife, so, my logic says that then I should fill it out Jointly and then explain to USCIS the situation, or maybe I am wrong, I don't really know how it works, and that is why I'm writing here, needing of the advice of those who have more experience and knowledge in the area.

I will appreciate it any help, advice, link, or whatever it helps me to understand what is my next step in terms of immigration paperwork.

Thanks for reading.

I am not sure. But I think this thread has all divorce applicants interacting - try there also and meanwhile someone with knowledge about these cases will guide you - link http://www.visajourney.com/forums/topic/259288-i-751-waiver-filers-timeline/page-45

Meanwhile I will do some research.

[vegano 5]

Wow! there are over 45 pages in that thread, I'll check it out and see if someone from there can help me, it seems this isn't an easy case, about 150 views and no answer yet, thanks anyway Navyk.

Edited September 5, 2013 by vegano

[TBoneTX 45,284]

*** Thread moved from ROC forum to the Effects of Major Changes forum, to be among similar threads. ***

[Villanelle 4,122]

What the lawyer told you was correct.

Heres what you are confused about- - Being honest, I'm more confused now than before I talked to him. I've read that if you send too early the I-751 (before the 90 days period), it will be rejected and send it back to you. So, I don't understand why he told me that or maybe I understood him in a wrong way. The very simple explanation for this is and why it does not apply to you is: the moment you separated from you spouse the window for ROC opened. If you were married and filing jointly the window would not open until the 90 day period before the card expires. Separate from your spouse and file for divorce- it opens immediately. (whether or not you choose to use it is once its open is up to you)

When you file your ROC with the waiver, they will accept it and send you an extension letter. They will want your divorce decree if its not included and send you an RFE for it. They will not approve you with out it. It takes them about 8 months to process ROC currently.

Its your choice on whether you want to send it in now (which you are eligible for) or wait until the last possible moment to send it in (any time between March and May) but you must send it in before May 2014.

No matter when you send in your papers, now or if you wait, your not going to have a final divorce decree and they are going to RFE you for it. I dont know how long after you send in your papers its going to take for that RFE to come, youll have 30 days to respond with the decree. Even if you waited until May to send in your packet and they took a few months to RFE you and you got the RFE in Aug or Sep, youd only have until Oct to give them the divorce papers. Youd really be counting on them not RFE'ing you for the divorce until Oct/Nov since youre not going to have it until then, and I dont know how realistic that is. But you can give it a shot and delay filing if youd like...

If you fail to present the divorce to the RFE or rather when you do, because you are just not going to have it in time- they will deny you and it would get referred to immigration court for you to present it there when you do get it in Nov/Dec. Its not a big deal. It happens. They understand that divorce court moves slower the USCIS but they cant simply hold up your ROC waiting. Your are never out of status though. Youll still be able to work. Its just a headache but thats life.

So delay filing if you like. Maybe youll get lucky and the'll be a backlog and you wont get the RFE until late and youll be able to submit the divorce decree to the RFE and avoid any headaches. But thats also contingent upon divorce court moving quickly and smoothly.

(sorry about the troubles with your wife)

[vegano 5]

Capri, million thanks. I couldn't be more thankful with you for such a clear and extense answer, I think I have more clear now what are my choices. There is a lot of information and cases online talking about this situation of filling the I-751 separated, but not divorced, but believe me, just a few mentioning cases where the ROC filler isn't going to be able to get the divorce decree within the time that USCIS requests it.

The only site I found with something related was: http://www.pcurtislaw.com/failing-marriages-and-conditional-green-cards where they explain what to do on two similar scenarios:

Scenario 1. The marriage has failed, and the divorce is final.

Scenario 2. The marriage is failing, but the marriage has not been legally terminated (i.e. divorce is pending, parties are separated, the couple is estranged, etc.)

Although the info in that site isn't as clear as what you already told me ;]. But anyway, it is a shame there isn't a FORM or something you can do to request an extension to the USCIS to sending them the divorce decree. It is also a shame that in this dumb state getting it takes about 1 year and 2 months if you move fast. States like Florida you can get it in less than 2 months if it is uncontested of course, which would be my case.

In summary, I think that my best choice is trying to delay the Petition to Remove the Conditions of Residence until 2 or 3 weeks before the 90 days period ends in May/2014 and have faith they answer me with the RFE or requesting the Divorce Decree at the end of 2014 when my legal divorce process is about to end.

Can I ask you something else please?

In the link I just shared, whoever wrote that text, said in the scenario 2:

Solutions for LPR's in Scenario 2
LPR's who are still legally married but are in failing marriages can encounter problems with the I-751. Because the waiver of the joint filing requirement is only available to LPR's whose marriages have been legally terminated, LPR's in failing marriages are not eligible for the waiver. This is true even if the couple is legally separated. If the LPR's spouse is not willing to cooperate and jointly file the I-751, the LPR should consider initiating legal proceedings to terminate the marriage if divorce proceedings are not already pending and file the I-751 and request a waiver of the joint filing requirement despite the fact that the marriage is not yet terminated

In the underline/bold part it says: "If the LPR's spouse is not willing to cooperate and jointly file the I-751...".... my question now is, what about if the LPR's spouse IS WILLING to cooperate? in what way it could change things or what do they really mean with that statement?

One million thanks again for your help :]

Edited September 7, 2013 by vegano

[Villanelle 4,122]

A lot of your confusion is because youre picking apart the language. People tend to talk in casual terms and forms and legal sites use proper terms.

When they say something like to file for the waiver they mean successfully file for and get approved. The whole ball of wax from the submission to the approval at the end. Technically the waiver tick box says you must be divorced, but in all practicality you dont need to be, you just better be before its all over. Because youre going to be getting an RFE for it, like I said fail to present it to the RFE youre going to get denied and end up in immigration court where youll have additional time to present it- but at the end of the day its going to need to be presented to USCIS if you want to ROC and keep your status. Otherwise surrender your card and leave. As stated before your ROC window isnt going to wait for you to be divorced, so you need to file in it.

So, you are eligible to file with the tic box for divorce even with out the divorce and provide it later. You are also elgible to file with your spouse if they are willing.

--

IF you and your spouse are still legally married at the ROC window opening, which it seems like you will be, AND your spouse is willing to sign the ROC application (filing jointly with you) you have the option of filing a joint ROC.

There are some threads on VJ about that as others have done it. (filed a joint ROC while separated/contemplating divorce etc)

Basically youd file your joint petition. It would be treated like any other petition. EXCEPT that they would most likely require an interview and they are going to be looking hard at the bonafides of your marriage as they feel that since you are separating it may have been a fraudulent marriage. (but thats really no different then a normal ROC) The only difference is in this case they get to speak to both you and your spouse where in a normal ROC they only talk to you and theres a high chance in a normal ROC that you can get approved with no interview. In joint ROC wheres the separation issues, they always talk to you to see whats up, if the spouse is 'helping you' secure benefits.

Most people that seem to file that way ^ while separated, seem to send in a letter of explanation for the differing addresses or recently separated bank accounts- which is how USCIS knows you are seperating. The last thing you want to do is fail to disclose it to them on your initial submission because ROC can be approved with or w/o interview. Sure it would be great to just submit a packet of plain evidence and not say anything and get the card quietly, but what if you are chosen for the interview? Not for any other reason except it was just random. Then you have to show up for an interview and explain you guys have been separated and you were separated at the time it was submitted and chose not to tell them. It will make you look bad and intentionally deceitful. Not exactly the way you want to present yourself when your goal is to convince them you are capable of making honest statements like- I entered the marriage in good faith.

Also if you were to get your final divorce decree at some point before your joint ROC was approved youd have the option of changing your joint ROC to a ROC with a waiver and cutting your spouse out of the equation at any time. Which could work to your advantage I suppose.

I really dont know too much about your situation or what the future holds for you. Perhaps your wife is amenable now to helping you with your immigration paperwork due to the fact their was infidelity on her part. But will she feel this way 8-9 months from now when it comes time for a joint interview? Her answers and demeanor in the interview is going to effect your approval. Keep in mind you also have a looming divorce on the horizon and lots of financial issues to work out.

Breaking apart a marriage is very hard. Emotionally and financially. For whatever reason your state is requiring you to be tied to your spouse for the next year- and thats one thing. In divorce court youre both on an even playing field. Her behavior isnt going to effect you. However tying yourself to her voluntarily for the next 9 months for immigration is different. If you dont play nice (lets say you get a gf she doesnt like by then) your interview may not go well...

Heres a USCIS memo explaining it. Its a bit confusing at some parts though.

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

[vegano 5]

Hi Capri, newly, one billion thanks, I couldn't be more grateful with you for all your help. You are right when you say I'm getting confuse because I'm picking apart the language, being honest all these legal terms and concepts aren't my strength, probably because English isn't my native language, or just because this is not a common case, I don't know, my wife was the one that helped me a lot to fill out the I-I30, I-485, etc. She doesn't work on the legal area, but I don't know why she understood all the forms and process easily (she's pretty smart ;]), but anyway, although we aren't hating to each other, we are now living apart and I prefer do not ask her for help on this matter, unless it is strictly necessary. This coming Friday I have an appointment with an immigration lawyer, and I already invited her to this meeting. I hope she goes, and she can see how her actions are going to affect to me legally in the future, and I also will see how willing is she to helping with anything needed from her side on this coming process.

Again, I truly appreciate your help. I'd really like to say that I now have everything 100% clear, but I have to admit that I still have some very little confusions at this moment. I'm going to read 3 or 5 more times what you said to the whole picture in my mind. I think the best solution so far, is filling the I-751 by myself since I don't know next year where my wife is going to be, and if she is going to be willing to go to an interview or something, besides, she is pregnant at this moment from someone else, when she gives birth, the last thing she is going to be worry about, will be me. The same applies for the legal divorce process, what a headache. But anyway, the good thing is now that I'm not ignoring how this works and what is coming for me, I'm going to be able to better understand and discussing with the lawyer everything he proposes to me to do and not just say OK.

Thank a lot Capri :]

PD. Many thanks for the link, I think I have already read that communication in another forum, but I'll give it a deeper look again.

Edited September 9, 2013 by vegano