Divorce while waiting for removing conditions decision

[Alex82 1]

Hello Everyone,

Just joined because I couldn't find an answer pinned or in other topics.

This is my situation: I obtained my green card through marriage to a US Citizen, we were married for 2 years and started having problems around our 2nd anniversary, he moved out but we were trying to make things work. We signed the I-751 together and USCIS got it last December, at that point we were living apart. We didn't manage to resolve our issues, the truth is, I haven't heard from him this year at all. In my cover letter I mentioned our financial situation has been hard on us and we are going through rough times. If we get called for an interview (hope he would show up), I'm obviously not going to lie what the situation is, we loved each other throughout our marriage, lead a life together.

My application is in the 'initial review' stage, biometrics appointment was at the end of January.

In the state of New Jersey, you have to be separated for 180 days to file for divorce. In June, it will be 6 months since USCIS received our documents and that's technically the time when I could file for divorce.

My two questions are - while reviewing my case, will the immigration be able to see I have a divorce in progress? Like I mentioned, I don't want to hide the situation I'm in, but I also don't want it to negatively affect the case.

#2 provided it all goes well and I receive my green card, will it affect a future naturalization process if it was my husband filing for divorce? (I'm sure it will be a no-fault, uncontested divorce and I'm planning to leave the state as soon as possible therefore him dealing with all the paperwork and visits in court would be much easier on me).

Thank you guys for all your help.

[Alex82 1]

I guess I have a bigger problem now because I just received a RFE. Their mentioning children's birth certificates (that we don't have), mortgages (we rented an apartment and I did send a letter from the landlord), there were no joint accounts because we used mine to establish credit and for the same reasons we had utility bills in my name, except cable. There were no loans, no will, no trust. Basically all I can provide is affidavits and some more explanation.

Now, I'll try and do my best, but I assume I should provide what I have for the period of the marriage but inform them that we're separated?

Any helpful ideas?

[Merrytooth 5,748]

Here is the example list for ROC

BONAFIDE EVIDENCE Example list for ROC

1. Evidence of Joint Ownership of Assets and Shared Financial Responsibility

• Joint Federal / State Tax transcripts
  
• Joint bank account statements
  
• Proof of joint credit card use
  
• Mortgage loan contract or lease contract with both partners’ names in it
  
• Power of Attorney
  
• Wills
  
• Utility / Cable TV / Cell phone / Pets visit / Membership / Joint purchase bills
  
• Life insurance policy showing spouse as beneficiary
  
• Health insurance / Dental / Medical Bills
  
• Car insurance
  
• 401(K) account information showing spouse as beneficiary
  

2. Photographic Evidence

• Photos of you two together
  
• Photos of you two with family (such as wedding, parties, kids’ graduation, etc.)
  
• Photos of you two in various locations and times
  

3. Other Evidence in Support of Bona Fide Marriage

• Birth certificates of any children born to you together
  
• Sworn affidavits of friends and/or family
  
• Letters/cards from friends and/or family
  
• Vacation / honeymoon photos / Boarding Passes showing both of you travelling together
  
• Hotel receipts with both your names
  
• Other Misc receipts with both partners’ names in shipping/billing address
  
• Joint Fishing or Hunting license
  
• List spouse as each other emergency contact from employers
  

=========================================================

You could switch the I-751 jointly filed to I-751 with waiver once you filed for divorce, get the final divorce papers.

[Alex82 1]

Thank you Merrytooth for your time. I went through the list before, all bills were in my name except cable, we used my account for payments (as a new immigrant I had zero credit score and since he was in debt we tried to work on that) so I have nothing 'joint' to show for. Even ebay purchases went through my paypal. I sent a lot of pictures and you can tell they were taken throughout some period of time. I basically have nothing new or better to add, I know this doesn't look good and I've never been so worried.

Do you think I should try to send additional info (I'll find some more bills and affidavits) but explain the separation and file for divorce in June (it might be a lengthy process in my county, I won't get the divorce decree before the time I'm supposed to provide the evidence - August 11) and just wait for the interview and if that FAILS switch to the one with waiver? Or should I try to do it now without replying to the RFE?

Could you explain that part for me a little bit? I've never read about a situation like mine.

[Merrytooth 5,748]

Thank you Merrytooth for your time. I went through the list before, all bills were in my name except cable, we used my account for payments (as a new immigrant I had zero credit score and since he was in debt we tried to work on that) so I have nothing 'joint' to show for. Even ebay purchases went through my paypal. I sent a lot of pictures and you can tell they were taken throughout some period of time. I basically have nothing new or better to add, I know this doesn't look good and I've never been so worried.

Do you think I should try to send additional info (I'll find some more bills and affidavits) but explain the separation and file for divorce in June (it might be a lengthy process in my county, I won't get the divorce decree before the time I'm supposed to provide the evidence - August 11) and just wait for the interview and if that FAILS switch to the one with waiver? Or should I try to do it now without replying to the RFE?

Could you explain that part for me a little bit? I've never read about a situation like mine.

Hi, I tried to find similar cases like yours, I-751 filed jointly but divorcing soon.

http://www.visajourney.com/forums/topic/375137-pending-i-751-and-final-divorce/

http://www.visajourney.com/forums/topic/259928-i-751-while-waiting-for-divorce-judgment/

http://www.visajourney.com/forums/topic/217344-divorce-vs-legal-seperation-what-is-best-for-filing-i-751/

http://www.visajourney.com/forums/topic/262505-filing-i-751-jointly-while-we-are-living-separately/

Read this about I-751 filed prior to termination of marriage.

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

Given your current situation with your spouse, no contact and separated for many months, it would be best that your proceed to withdraw the I-751 jointly filed and change to I-751 with waiver.

Or if you are called up for Interview, you will explain to the USCIS officer that you are switching to ROC I-751 with a waiver, that your divorce is pending.

Your Bona Fide marriage evidence looks thin, not much financial co-mingling which USCIS like to see.

You probably have to write a statement explaining why there is not much financial co-mingling.

Do you have Federal Taxes married filing jointly or even married filing separately?

Health insurance?

Both driver licenses showing both of you living together at the same address

Any letter addressing to your spouse or you delivered to the rented apartment both of you shared (showing both of you lived at the same address)

Send in your Paypal purchases receipts, highlighting which ebay purchases are for your spouse or you.

You have to find more bills, friends/family affidavits to send in for your RFE.

Good Luck to you.

[Alex82 1]

Thank You so much. I have read eveything thoroughly.

Reading through my RFE again I see that I showed bills from July to October last year and only one tax filing for 2012. So it's probabaly mostly the time frame that I used that red flagged the officer, should've sent way more from different periods in our relationship.

I'd like to add that I cannot afford a lawyer right now. Even though me and my husband don't communicate I do know where he is staying and I don't think he would want to complicate anything once we have to go to court or for an interview.

Even if I change for the waiver, I assume I will still need to send all the information that they are requesting right now.

Is it possible to try to send what I can the way it is now and wait for the interview and file for divorce in June?

It's the timing that doesn't work here - we signed the documents in November, but USCIS got them on December 10th. If I file for divorce BEFORE June 11th (180 days since 12/10/13 - NJ law to be separated for that period of time) I'm basically saying we LIVED APART before filing.

Like I said, I'm not trying to trick the gov't in any way, the timing of my divorce will come up with the naturalization process in the future anyway.

Does it make sense to reply to the RFE without mentioning the separation and wait for both the interview and the right time to file for the divorce? and then possibly the change for the waiver proceedings?

[Birdo 16]

You have to withdraw your petition. Here's a quote from another post to the same situation from another poster:

"Given your specific situation, you cannot file the I-751 jointly with your husband. Even if you get approved and they find out eventually, all hell will break loose.

You need to withdraw your original I-751 and file a new one with a waiver. Since time is not your friend here, file it about 7 to 10 days before your GC expires.

You will receive a NOA1 which extends the validity of your GC for a year. That also covers the I-9. Once they have a closer look at your file (which luckily takes time), they'll discover that the divorce decree is missing and they'll send you an RFE for it. And again you have time to respond, which is good. Hopefully, your divorce will be finalized when all the time you have been given runs out, but if that's not the case, deportation proceedings will be automatically initiated. And that too will take time again. Eventually, there will be a court date at which point you need a lawyer. Your lawyer will ask the judge to put the deportation case on hold until your divorce is final and your I-751 has been revisited and decided upon. In all but the most unusual cases the judge will grant this request.

Then, once you have a divorce decree at hand, you'll respond to the RFE and send it to USCIS. They then can and probably will decide in your favor and -- most likely after a brief interview -- remove the conditions and give you unconditional residence.

It's important that you understand how crucial the timing here is. You need to buy as much time as possible in order to get your divorce finalized as that is a 'must have' requirement for the final adjucation of your I-751."

Edited May 22, 2014 by Birdo

[MissFoley 2]

You won't be successful in a joint petition because that requires that you are married AND living together, but you're separated. However, Immigration allows you to change the basis for your application at the interview. So certainly if you get the interview prior to the divorce becoming final, you are in a sticky situation. You MUST be honest because if they catch you in a lie, you are done for. However, a generous officer might see that you've filed for divorce and agree to hold your petition open while you are in process. Otherwise, a denial OR a withdrawal of the I-751 will usually lead to Removal Proceedings. You do have the opportunity to have the Immigration Judge review the case and most judges would give you time if you were waiting on a divorce to get the final judgment of divorce and THEN file requesting the waiver. Best of luck! I know it's very stressful. Also, regarding the evidence, you want to get creative. Get affidavits from friends and family. Anything you can get from his family is especially strong evidence. Also, did you name him as an emergency contact or did he name you (such as school or work records, medical records, etc.)? You could submit those. Jointly-filed taxes? Did you ever receive an invitation to a wedding or party together? Or cards for birthdays, anniversary, etc? Those are also evidence. Emails or letters or notes between you, evidence you went to any kind of counseling together, auto insurance naming you both, a lease ... ANYTHING. Submit everything you have and don't get too depressed because you don't have what's on the list Immigration gives you.

[Alex82 1]

Hi, I appreciate your help, I already submitted everything I could, I can add more bills (separate) from a longer period of time. Will try to copy the emergency contact from work. His family didn't even reply to my Christmas wishes, so affidavits from his side are out of the question. I spent over 4 hours reading through the suggested things to send, I'll try to do my best to provide as much as I can.

My situation from the one in the other thread is different, because when we signed (November) we were still trying to make things work. My GC expired in January, so I already have the 1 year extension till December 2014. So basically, my situation changed while waiting for the response.

I could technically stall with replying to the RFE till August (that's when the deadline is) and file for the divorce in June and possibly have it almost done (or done) by the time we get called in for an interview. If it's ok (since I know I still have to provide all this evidence) to do it that way, I could change it to the waiver AT the interview, like you're suggesting.

I am just uncertain if it makes sense. That option buys time and there could be a tiny little chance we wouldn't be called in for an interview.

So now my problem is whether to A. send a reply to RFE soon without mentioning separation (since they will still need the proof of a bona fide marriage) and just proceed with the divorce in June and wait for the response and mention the waiver at the interview (I would not have the decree in my hand yet) or B. file with the waiver now, but then I'm risking the divorce not being done in time and in my mind, maybe I'm wrong, it looks suspicious that I would try to change the I-751 now, only because I got the RFE. C. send a reply but explaining the separation now D. wait till August with everything and do it similarly to A. E. wait till a few days before the RFE has a deadline, withdraw joint, file with a waiver and all the evidence AND a hopefully a divorce decree

Do any of these options make sense to you? Like I said, I am not planning to lie about anything, I stayed here because I fell in love, but now removing me from a country I call home would be an absolute nigtmare.

Edited May 22, 2014 by Alex82

[Hypnos 6,578]

You have to withdraw your petition.

You are mistaken. Refer to the following USCIS policy memo: http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/i-751_Filed_%20Prior_Termination_3apr09.pdf which clearly states that the filing status can be changed without needing to withdraw the petition. This can be done by making an Infopass appointment at a local office and making a written request to change the filing status from joint to a waiver request.

OP, you're caught between a rock and a hard place. I've lost count the number of times people have posted here about this exact issue. It's one of the worst black holes USCIS has.

First, I would recommend you at least consult with an attorney to evaluate your options (many attorneys will consult for free).

Do you know if your husband is willing to attend a joint interview if you are both called to one by USCIS? If he will, you do not need to amend your filing. If he will not (or you're not sure either way) then amending your petition to a waiver filing will probably be what you would need to do, but then you could only have your case approved once USCIS received a copy of your divorce decree. If you ran out of time to provide it to them (they will not stay your case indefinitely) then your I-751 would be denied, your CPR status revoked, and you would be place in removal proceedings and would have to appear in immigration court. In that situation the immigration judge likely would just continue your case until your divorce was final, and either the IJ themselves or USCIS would be able to re-adjudicate your I-751 on the basis of a waiver filing now you had the final divorce decree.

[Alex82 1]

Thank you Hypnos, yes I strongly believe he will appear at the interview. We didn't split up fighting, it sounds weird, but we had so much built up resentment that we just stopped talking to each other. I expected him to approach me and he didn't, but I never did anything to hurt him hence I don't think he would refuse to come to USCIS again or sign the divorce papers.

I just wanted to make sure I got what you just wrote right - that would be my option D - I'll file for divorce in June, send a reply to RFE just before time runs out in August (I'll at least have the divorce in progress) and just wait for the interview to adjust the basis for filing on the spot in front of an officer?

btw I have spoken to lawyers before (when filing for AOS) and have to admit forum members are better informed than some of them - thank you everyone for your great work!

[Alex82 1]

I have read the memo multiple times and I can't understand this part

"There is no waiver of the joint filing requirement based solely on the fact that the CPR may have entered the marriage in good faith, but he or she is legally separated from the petitioning spouse or is currently in divorce or annulement proceedings. If ISO encounters a waiver request on the basis of termination of the marriage, but the CPR is currently legally separated or in pending divorce or annulment proceedings, the ISO issues a RFE with the response period of 87 days. In many cases the divorce will take place during the response period to the RFEm which affords the CPR the oportunity to establish eligibility for the waiver by submitting a copy of his or her final divorce decree or annulment. If the CPR established eligibility for the waiver, the ISO adjucates the petition on the merits in accordance with established procedure."

Doesn't the first sentence contradict the second? I am trying to figure out what 'Iso encounters' implies - that somehow CPR informs them of the divorce in progress?

[Hypnos 6,578]

I think by "encounters" they mean: (i) when a CPR files a waiver request without yet being divorced, or (ii) the CPR initially filed a joint petition, but was called to an interview and the US citizen either doesn't appear or formally withdraws their support, then the CPR requests to change from joint to a waiver filing.

[Alex82 1]

It's very unclear. I still don't know whether to wait till the interview or inform them with the RFE. You might have been right calling it a black hole in the entire process.

[Hypnos 6,578]

It's certainly not an opaque process, and they could absolutely have phrased it better.

Edited May 28, 2014 by Hypnos