Divorce after I751 submitted Please help!

[ChrisIR 0]

Hi Everyone,

I have been living in the US with my USC spouse for almost 2 years now, I am due to remove the conditions of my GC and filed for ROC almost two months ago. I have my NOA1 already and have done my bio metrics.

Things were a little shaky in our marriage before I submitted the ROC but we decided to try to make it work. Unfortunately it has not and now I am in quite a difficult situation.

My wife and I are splitting up but I am a bit unsure of what to do. My wife and I are on good terms and she understands my immigration situation and does not want to do anything to negatively affect me in that way. At the same time she is wanting to start the divorce proceedings.

We have looked into it and in our state it will take 6 months to finalize a divorce. I understand that I can submit a waiver application for the joint filing requirement without my divorce finalized but I will get an RFE to send my divorce decree during the process. It is highly likely that my divorce will not be finalized at this time and I will therefore be unable to send the RFE in time and be denied.

I feel like I have a pretty good understanding of how the process works but I would love to pick the brains of others and see if other people on here have been through anything similar and what you think I should do.

Here are my questions:

If my wife does want to push the divorce through and is not willing to wait it out what is the best course of action?

Can I cancel my current i751 and submit a new one after we begin divorce proceedings doing another biometrics, NOA1, etc.. there by giving me more time to finalize the divorce? or is this a situation where I would have to just send a note saying that I want the waiver for this current application I have? I am thinking a whole new application would no doubt take longer and I still have 1 month before my Conditional GC expires.

How long will take it take from when I submit my waiver application to when they would ask for the RFE? I would start my divorce proceedings around the same time as I send in my waiver application so I would need 6 months to have that divorce decree ready.

My key point here is trying to find ways to be able to have that decree in hand by the time they ask for it? I dont think I can ask for an extension of any kind and will get denied if the divorce is not finalized and then have to appear in front of an IJ right???(which is a very scary thought)

I know my situation is quite unique and complex but any advise on what others think my best plan would be wonderful.

Thanks so much for your time and I hope to hear back from some of you soon.

Christian

[tuckin14 58]

My situation was very very similar to yours. I am the USC.

In our case, the I-751 was submitted at almost the same time we separated. There was never an RFE, and we were called to an interview a full year after the I-751 was submitted. We had not even filed for divorce at that point.

So the first answer to your question is, if your spouse is willing, you can continue the process as if married. Of course you will tell USCIS about the status of your marriage. But from a paperwork standpoint, if you are still legally married, you can continue to file for ROC as if married. You would have to file with a divorce waiver only if your spouse was unwilling to file jointly.

Additionally, USCIS is extremely liberal on what they accept as "divorce." My wife's ROC was denied because I didn't attend the interview. She tried to change it to a waiver filing and USCIS denied that, telling her that because we had neither a legal separation nor a divorce filing, she was not eligible. The strong implication was that either a legal separation or one of us having filed for divorce would have been sufficient for a waiver filing.

My wife (we have filed for divorce but it's not final yet, and we're not on speaking terms) was denied in October, but as far as I can tell she's still living and working in the USA and I think she may have filed a new I-751. So even getting denied is not the end of the world.

So I think you have much less to worry about then you might think. I'd just let things as they are for the moment. Remember, the legal standard is the same whether you're divorced or not - did you marry in good faith? As long as your wife is not going to withdraw the joint petition, I'd just let it go as it is. If you do get divorced before you hear from USCIS, maybe make an InfoPass appointment and go ask them what to do.

[ChrisIR 0]

Thanks so much for the response, that is really helpful.

I will have to sit down with my wife and see what she wants to do. Obviously ideally we would leave as is although I want to have a plan B if we do end up getting a divorce.

I am worried that we will not have time for the divorce to be finalized before they ask for RFE but If I understand correctly, you are saying that as long as we have the initial divorce filing we will be ok?

Also, interviews at this stage seem to be rare. Was your spouse called in for interview because they knew you guys were sepearted or was it just random?

Thanks so much for your time, your experience is really helpful.

Christian

Also, was there a reason you guys had to wait a full year before interview I thought normally the ROC was a much faster process than that?

[deidre 13]

Hi Christian,

Almost similar situation with me... as for me, my divorce took almost 2+ years to finalize (due to the fact we had to be seperated for at least 1 year to be allowed to divorce in NC and then my USC spouse went M.I.A.!!) Anyways, I had submitted my ROC and several months later we separated. Though we still lived together for a while, it wasn't till after I got my 10 yr GC that we then "officially" separated. I went thru my ROC as I had originally submitted, as married. I entered in to the marriage as good faith which is really what they need to see and that we had been living as a real couple, which we were.

Due to the fact that I was not "officially" divorced during ROC, as I did not have the divorce decree stamped and signed by the judge, I was not considered as divorced yet. Because USCIS require you to be married or divorced at time of application.

So I would suggest to you, keep everything as is. Unless you actually receive the Divorce decree in hand then you aren't yet divorced and therefore there is actually nothing to advise USCIS.

Hopefully you'll be able to complete ROC first then receive divorce decree later..

Edited February 14, 2015 by deidre

[ChrisIR 0]

Thanks so much for your response.

I actually did not know that. I thought if we even decided to file for divorce we would have to advise USCIS, so it is only when you actually receive the final decree that you would be considered divorced otherwise we are still considered married?

All very confusing now...

Thanks so much for your time, I am glad it all worked out well for you.

[tuckin14 58]

You don't really have to tell USCIS anything. Of course you can't lie to them. But if you were married at the time you filed, you don't have to inform USCIS if you separate or even get divorced. You might just get approved without further communication. Of course if you go for an interview, they'll probably ask, and even if they don't, it's probably best to disclose because if they feel like you hid that, they'll wonder what else you're hiding.