ROC - Divorce and possible reconcile

[Joyce and Chris 1]

I didn't know if I should post this in this forum of the regular ROC forum but here is goes. I am the USC and my spouse has her 2yr GC. Without going into details our marriage wasn't as smooth as it could have been and divorce papers were filed. The papers were filed basically right when then initial 90 window requirement to file ROC started. That would have been around March 15th of this year. Well the first 90 days have passed and I understand that she needed to file something during that period to get a 90 extension. Of course that 90 extension would basically be up as well. So roughly the past several weeks we have been talking about reconciling and working out our marriage in which I hope and pray will be successful. Her divorce lawyer is also an immigration lawyer and has told her not to worry. Well now we are worried that the window to file has come and gone. So I have asked my wife to find out if her lawyer has sent anything to the USCIS for the ROC. So some questions have come up:

Has the window come and gone for her to file?

Does she need to file any thing right now?

If we continue with the divorce, then can she file after the she gets the decree?

If we reconcile then how does that effect the ROC now that the file dates have come and gone?

Should we schedule and InfoPass and talk with an immigration officer?

Thanks.

[Caryh 5,206]

Immigration officers are not allowed to advice you on what to do. So scratch the info pass.

ROC must be filed in the 90 days before the green card expires. They may accept a late filing, but you need a include a very good explanation of why it is being filed late. They do give a little leeway there, but only a little. At 90 days past, she may be pushing when they'll even accept it.

They get a one year extension letter with the ROC application, not 90 days.

If the ROC application is rejected for being late and you're still married and plan to continue to be married, you'll likely need to refile an I-130 and I-485 and start things over again. She is currently in the USA without authorization, counting days until a ban is set on her re-entry. If you continue to divorce without her having filed her ROC, she's working towards being deported and banned from re-entry if she exceeds 6 months without authorization. I have a hard time believing her lawyer has any competence in the immigration side of things if he's saying her not filing a ROC petition is nothing to worry about.

Edited September 15, 2014 by Caryh

[belinda63 3,031]

Without a very good reason for a late filing she cannot file to ROC. Most likely a letter has already been sent saying she is no longer in status and she needs to leave the US or risk deportation. If you reconcile you will need most likely need to file all over again as Caryh has said.

At this point you are playing with fire as she is out of status and subject to detention at any time.

[Joyce and Chris 1]

Thanks. As for getting an InfoPass, it would not be for legal suggestions but just to confirm what the required next steps are. I can't believe her lawyer would have just dropped the ball like this.

[Caryh 5,206]

Thanks. As for getting an InfoPass, it would not be for legal suggestions but just to confirm what the required next steps are. I can't believe her lawyer would have just dropped the ball like this.

That would actually come under the asking advice heading. She is currently out of status, and its not known if they we would even accept a ROC application from her currently.

I'm a little curious about when the idea to reconcile came up. Obviously her lawyer will not discuss this with you, as its her legal representation against you in the divorce. But did she bring up the idea of reconciliation? Maybe even after she realized she may have screwed the pooch on the ROC and not getting back with you until she has her 10 year card may be her only choice?

I know these cross cultural marriages are often not easy, and things like this can happen. But I'd think closely behind the real reason for the sudden wish to reconcile now. Even if it was you who wanted to, and suddenly now she's saying lets do so, when before it was a no.

[Joyce and Chris 1]

I would think InfoPass would be able to tell you want your status is and if anything has been sent out. She has moved a couple times but I know she has been diligent on sending in address changes.

I am the one who suggested the reconcile. But I know what you are saying, Once bitten Twice Shy. If things don't work out between us I still want to be able to support her wishes. I want her to get proof from her lawyer that everything is OK.

I told her to call me as soon as she hears from her lawyer. The longer the wait the more concerned I am.

[Caryh 5,206]

I would think InfoPass would be able to tell you want your status is and if anything has been sent out. She has moved a couple times but I know she has been diligent on sending in address changes.

I am the one who suggested the reconcile. But I know what you are saying, Once bitten Twice Shy. If things don't work out between us I still want to be able to support her wishes. I want her to get proof from her lawyer that everything is OK.

I told her to call me as soon as she hears from her lawyer. The longer the wait the more concerned I am.

Her status is very easy to determine. The day her green card expired without filing to remove conditions, she has been in the USA without authorization. Essentially she is now an illegal immigrant, with the clock ticking on being able to do anything to change that situation. If she's working, she's earning another offense that can get her deported and banned. Sure she can stay here and survive like millions of other illegal immigrants, but its rather foolish when she could have removed conditions, but is letting some idiot of a lawyer tell her she doesn't need to worry about it.

[Joyce and Chris 1]

I have confirmed with another immigration lawyer on her situation. Yes when her GC expired, which would have been in June, she becomes out of status. But it would be up to her employer to find out and once they find out to take action. Well her current employer I doubt would take any action. I will just leave it at that.

In regards to the I-751. If we were to file jointly then we would need to take action right ASAP. The only thing we would need is an excuse for the late filing. The separation and pending divorce would be that excuse.

If she were to file an I-751 waiver then she can file anytime and there is no deadline. But like mentioned above she is out of status.

I won't tell you who my immigration lawyer is but most on this forum has read his work and some have even quoted it.

Anyways now we just need to figure out how to proceed with the I-751.

[Caryh 5,206]

I have confirmed with another immigration lawyer on her situation. Yes when her GC expired, which would have been in June, she becomes out of status. But it would be up to her employer to find out and once they find out to take action. Well her current employer I doubt would take any action. I will just leave it at that.

In regards to the I-751. If we were to file jointly then we would need to take action right ASAP. The only thing we would need is an excuse for the late filing. The separation and pending divorce would be that excuse.

If she were to file an I-751 waiver then she can file anytime and there is no deadline. But like mentioned above she is out of status.

I won't tell you who my immigration lawyer is but most on this forum has read his work and some have even quoted it.

Anyways now we just need to figure out how to proceed with the I-751.

Did some googling, and I guess late filing due to divorce is accepted. I wonder how late they can go? They certainly do jeopardize their jobs working without authorization. I know my wife who started working at a firm with a two year green card, was never asked for an updated card after it expired. This makes me think her best option at this point is to divorce. Although the late filing if you two reconcile seems like it would be acceptable, and easy to prove as she has hired a lawyer, I'm not sure of you have though. I'd guess, technically she's also committing a deport-able offense by working without authorization.

How every this works out, I hope you can reconcile and save your marriage. Good luck