ROC pending for 2 months, thinking about divorce

[roki 0]

Hi,

filed for joint ROC in last december. its been difficult with my marriage from the begining, married for more than 3 years. still coming back and forth both of us about what to do with out marriage. I am just thinking out loud if I take the step to divorce now and what would be the consequences? and how should I proceed through ROC steps ? thanks

--rok

[Hypnos 6,577]

If your I-751 was still pending when your divorce was finalised, you would take a certified copy of your divorce certificate and a written request asking to change your I-751 filing from "joint" to "divorce waiver" to an Infopass appointment.

If you were called to an I-751 interview before your divorce was final, your spouse would need to go to the interview with you since it would still be a joint application; expect problems if your spouse refused to go with you under those circumstances,

[roki 0]

thanks for the reply. what kind of problems should I expect if my wife doesn't agree to attend the interview ? Also, will it effect my naturalization down the road if the divorce is final after my ROC gets approved ?

I also found some thread online where the divorce and approval dates are pretty close and they faced issues during naturalization. How can I make sure that I wouldn't have to go through those circumstances.

[Caryh 5,206]

If you're planning on divorcing you need to file using the divorce waiver check box. When the divorce is final, and they accept you married with honest intent, you removal of conditions will be granted. As you will no longer be married to a USC, you cannot apply for citizenship until you've been a legal resident for 5 years. You may be reading problems with people who attempted to gain citizenship after five years and USCIS discovering the divorce was pending when the ROC was granted. That would constitute fraud, as the parties knew the marriage was ending, but removed conditions based on a valid marriage. If your marriage is truly ending, then file for the divorce, and refile to remove conditions on your own, with the divorce check box selected on the form. This will delay the actual removal of conditions, as the divorce must be final first, but it will avoid the appearance of fraudulently removing conditions.

If they call you for an interview, both must show up when you file to remove based on marriage. Failure of your wife to show up will lead to a denial, loss of your green card and loss of your authorized stay in the USA.

Edited February 4, 2014 by Caryh

[Brother Hesekiel 2,236]

Roki,

there are two ways to file for RoC:

1) happily married, living under one roof

2) divorced.

If you read this, twice, you'll see that you are neither 1 nor 2 right now. You are in the twighlightzone as you are not happily married any longer and thinking about divorce, and you are not divorced either. Admittedly, you are closer to 1 than to 2, and you could successfully argue that you are still be counted under 1, but it's a close call.

Depending on what state you live in, your divorce can take a few weeks or over a year. Find that out first.

Best case scenario would be that you notify USCIS that you wish to apply with a waiver since you are planing to file for divorce. If you can get this done quickly, it will only throw you back a few weeks or couple of months.

Worst case scenario is that it will take a year for you to get your divorce finalized. If you convert your RoC petition to a singular filed one with a waiver, you'll eventually (roughly 3 months from the time you start this) get an RFE where they ask for your divorce decree. Well, since you don't have one and can't get one for another 9 months, a few months later the USCIS system automatically will seek to get rid of you. You'll receive a letter and will have a date with an immigration judge, at which time your attorney will tell the judge what's happenin' and ask him to put the proceedings on halt 'til your divorce has been finalized and you have the decree in hand. In almost all cases the judge will sign off on this.

Once your divorce is finalized, you submit the divorce decree and USCIS can adjudicate your RoC petition.

You can become a US citizen by means of naturalization as early as the day you have become a resident, just 5 years later. At the 5-year mark your marital status becomes irrelvant.

Now . . . assuming you are rolling the dice and do nothing, and you not only get divorced before your RoC has been adjudicated, but FILE for divorce while your I-751 is pending, you are setting yourself up for serious problems at the N-400 stage. Even if you file after 5 or 6 years, the I.O. will have a look at your divorce decree, and guess what . . . if he finds out that you filed for divorce while your RoC petition implied that you were still happily married (see 1), he'll interpret this as fraud, and I don't have to tell you what that could do to your American dream.

So right now you are at a cross roads, and which way you decide to take, it's going to suck big time. The very first thing you need to find out before you do anything is how long it would take in your state to get a divorce done. Only then you can decide if you want to roll the dice and be the nicest spouse the world has ever seen for a bit longer.

[Scazy 78]

On 2/11/2014 at 11:12 PM, Brother Hesekiel said:

Roki,

there are two ways to file for RoC:

1) happily married, living under one roof

2) divorced.

If you read this, twice, you'll see that you are neither 1 nor 2 right now. You are in the twighlightzone as you are not happily married any longer and thinking about divorce, and you are not divorced either. Admittedly, you are closer to 1 than to 2, and you could successfully argue that you are still be counted under 1, but it's a close call.

Depending on what state you live in, your divorce can take a few weeks or over a year. Find that out first.

Best case scenario would be that you notify USCIS that you wish to apply with a waiver since you are planing to file for divorce. If you can get this done quickly, it will only throw you back a few weeks or couple of months.

Worst case scenario is that it will take a year for you to get your divorce finalized. If you convert your RoC petition to a singular filed one with a waiver, you'll eventually (roughly 3 months from the time you start this) get an RFE where they ask for your divorce decree. Well, since you don't have one and can't get one for another 9 months, a few months later the USCIS system automatically will seek to get rid of you. You'll receive a letter and will have a date with an immigration judge, at which time your attorney will tell the judge what's happenin' and ask him to put the proceedings on halt 'til your divorce has been finalized and you have the decree in hand. In almost all cases the judge will sign off on this.

Once your divorce is finalized, you submit the divorce decree and USCIS can adjudicate your RoC petition.

You can become a US citizen by means of naturalization as early as the day you have become a resident, just 5 years later. At the 5-year mark your marital status becomes irrelvant.

Now . . . assuming you are rolling the dice and do nothing, and you not only get divorced before your RoC has been adjudicated, but FILE for divorce while your I-751 is pending, you are setting yourself up for serious problems at the N-400 stage. Even if you file after 5 or 6 years, the I.O. will have a look at your divorce decree, and guess what . . . if he finds out that you filed for divorce while your RoC petition implied that you were still happily married (see 1), he'll interpret this as fraud, and I don't have to tell you what that could do to your American dream.

So right now you are at a cross roads, and which way you decide to take, it's going to suck big time. The very first thing you need to find out before you do anything is how long it would take in your state to get a divorce done. Only then you can decide if you want to roll the dice and be the nicest spouse the world has ever seen for a bit longer.

Well, It's been a while since this thread was active, but I saw your recent activity in here so you might as well check this message. You provided a very detailed response and I wanted to ask you a question. If the joint petition was filed some time ago and now based on current timeline chances are adjudicator would put his eye on in not earlier than 3-4 months, but happened and now people want to divorce while joint I 751 is pending, which steps exactly to take?

 File divorce ( will take 1,5 months) and send them final decree asking to convert petition to waiver? Would that cause a big delay? 

[TBoneTX 45,580]

A response is unlikely; try posting your question as a new topic in this forum.

Thread from 2014 is now closed to further comment.