Married but living separately before removing conditions

[gerus 0]

Hi all,

I am living in the US with a conditional residency greencard, after going the K1 visa route and marrying my partner.

We have been living together for about a year. Unfortunately, life has not worked out as we had planned. After many talks and tears we are now living separately. However, we still have a loving relationship and want to keep it that way. We do both still share responsibility for our dog, for example. We don't necessarily want to get a divorce.

So my main concers are:

- Could living apart be a problem when filing for the removal of conditions? In other words, would this likely still count as a "bona fide" marriage in the eyes of whoever will decide about our case?

- Might it be better to get a divorce and file myself?

Any advice is greatly appreciated!

[Boiler 46,173]

I would expect it would be a major issue.

[Illiria 980]

This isn't a case of forced by circumstances of work or school to live apart, you are separated and not living together due to the relationship not working. Lots of people not in a relationship coparent so sharing responsibility for a dog doesn't get over the fact that you have chosen to separate.

[HappyLaytons 12]

Its just not working out???

[oliviaalexandra88 9]

Hi all,

I am living in the US with a conditional residency greencard, after going the K1 visa route and marrying my partner.

We have been living together for about a year. Unfortunately, life has not worked out as we had planned. After many talks and tears we are now living separately. However, we still have a loving relationship and want to keep it that way. We do both still share responsibility for our dog, for example. We don't necessarily want to get a divorce.

So my main concers are:

- Could living apart be a problem when filing for the removal of conditions? In other words, would this likely still count as a "bona fide" marriage in the eyes of whoever will decide about our case?

- Might it be better to get a divorce and file myself?

Any advice is greatly appreciated!

I think if you are able to prove that you entered the marriage in good faith, it would not be much of an issue. So i've read...

Edited December 15, 2015 by oliviaalexandra88

[gerus 0]

Its just not working out???

Yeah, living together is not working out. We have learned a lot finding this out and in many ways being honest throughout this process has brought us even closer. Love is really unpredictable!

...not really related to the I-751, just commenting.

[Expat1 971]

- Could living apart be a problem when filing for the removal of conditions? In other words, would this likely still count as a "bona fide" marriage in the eyes of whoever will decide about our case?

- Might it be better to get a divorce and file myself?

Any advice is greatly appreciated!

I do not believe it is and it is probably more straightforward and truthful, if the two of you really do not intend to stay married, to get a divorce and file yourself.

It doesn't seem based on what you are saying that you guys are terminally done with no hope lost though. Nothing to do with ROC, just commenting

[NikLR 13,232]

So you can't deal with each other's idiosyncrasies but you love each other and want to stay married? You need to think long and hard about staying in a relationship where you don't want to live with your spouse. Maybe you guys are just really good friends but not a good fit for each other romantically. I think some couples counselling is in order and may help if you're planning to file jointly to show you're working on your marriage.

[gerus 0]

So you can't deal with each other's idiosyncrasies but you love each other and want to stay married? You need to think long and hard about staying in a relationship where you don't want to live with your spouse. Maybe you guys are just really good friends but not a good fit for each other romantically. I think some couples counselling is in order and may help if you're planning to file jointly to show you're working on your marriage.

Thanks for the advice, NLR. We have already started doing couples counseling. By now we are sure enough that we will not be living together, actually exactly for the reason you mentioned.

That said, our entire relationship doesn't end with that (yes, we still love each other), but it is definitely not what people would consider a traditional marriage. We wouldn't bother getting a divorce, but so far it looks like it is maybe the best to avoid unnecessary problems with USCIS.

Also thanks to everyone else for your help! If anyone has more information on what to do for the ROC, please let us know. I will also be posting our progress, so others can learn from it.

[Villanelle 4,122]

Okay well I looked at your timeline. A few things stood out. You got RFEs for both the 129 process and the AOS process. Im not sure why- and you dont have to elaborate- but a logical assumption is it seems that maybe you struggled a bit with the forms/instructions. ROC when separated/divorced or really any situation where its not the 'normal' is tough. While it can be done yourself many choose to get an attny because of the complexities.

It also shows you entered the US the last day of Sept 14, and filed for AOS in Dec of that year. So you were married Oct/Nov 14. You got the GC at the end of Aug 15. It is now Dec 15 and you are proposing living separately from your spouse. So we have apx 1 year of marriage and 4 months of being a GC holder.

---

Heres the thing- Im all for advanced planning. However you need to take into account that things change. How they are now may not be the way they are in Aug 17 when you have to ROC. The only thing you can do is play the 'what if' game realizing that there are many variables that can cause your plans to go awry.

So, I often say immigration plays a role in your life-however it should not be the deciding factor on what to do. Using it as a reason (to stay married or divorce or any other major life changes) can put you into the murky area of fraud. You do not want to do something solely for the benefits. USCIS has procedures and policies for just about every situation- so you just live your life and work with the system rather then working the system.

For separation and ROC. There is a policy memo I will try to remember to link at the end of the post. Its wordy and confusing and most people have to read through it several times to get it. What it basically says is this- now Im using plain English so my words and phrases wont match the text used in it.

(ROC is intended to be filed jointly. There are several waiver tick boxes available if you can not.) If you file the joint ROC (that would be providing nothing in your situation as described above changes- you still are separated and spouse is agreeable to filing) So you file a joint ROC and USCIS becomes aware the couple is separated. How do they know? Well it can come up in the interview, they can specifically ask you RFE style because of the different addresses or simply because you disclosed so upfront when submitting the packet.

When they become aware of this (in a joint filing) they typically will either send an RFE before hand or ask in the interview if you wish to change to a waiver filing and give you the standard 87 day response time to submit the final decree. You can choose not to switch to a waiver as they have the discretion to approve the petition based on the merits of it. (providing both parties are still participating in the joint filing.) Both parties will HAVE to appear for the interview. This involves a significant level of trust in the other person as their answers can jeopardize your status.

If one party is not participating still (we are talking the USC withdrawing support after submitting the joint application) then they will instruct you to change your filing to a waiver tick box and provide the final divorce decree. This is what Im talking about regarding not knowing how things will be between you and your spouse in the future.

Now there is a general understanding that USCIS can not deny simply because you are separated/divorced/in the process of either- however it can suggest that the marriage was entered into for benefits causing a denial.

If you stay on the course you are on- you will submit the joint application and then have to decide when the time comes if you want them to adjudicate it jointly or if you are more comfortable at that point switching to a waiver. Things that can help get a joint petition approved in those circumstances include statements from the therapist, proof of appointments, proof of the relationship/time spent together etc.

People have successfully went this route and gotten approved ( I recall at least 2 threads on here) with out attnys however like I said its complex and if you need assistance get it. If you are going to go the waiver route- well depending on how long it will take you to get your FINAL decree the process can be easy or it can involve going to immigration court after being denied for now having it in time. Again the more complex it gets the more likely one is to hire an attny.

I hope some of this helped.

---------

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

[gerus 0]

Hi Damara,

thanks, those are some helpful words.

I was of course thinking way ahead. I agree that life should come first, but I believe its good to look at the system and set things up so that they can later go as smooth as possible. For example, collecting whatever evidence is needed later for USCIS in advance is certainly helpful. For us divorce would also be one of those things, because for our situation our legal status doesn't really change how we can live our actual relationship.

But you made me reconsider, why not wait, let things cool off, and see what life brings since there is really no pressure to do divorce right now. Things can get a little heated when people separate, and having legal issues in the back of your mind surely doesn't help

Also, I am now considering hiring a lawyer because it's a pretty complex case already...

Thanks again!

[JayJayH 546]

Hi all,

I am living in the US with a conditional residency greencard, after going the K1 visa route and marrying my partner.

We have been living together for about a year. Unfortunately, life has not worked out as we had planned. After many talks and tears we are now living separately. However, we still have a loving relationship and want to keep it that way. We do both still share responsibility for our dog, for example. We don't necessarily want to get a divorce.

So my main concers are:

- Could living apart be a problem when filing for the removal of conditions? In other words, would this likely still count as a "bona fide" marriage in the eyes of whoever will decide about our case?

- Might it be better to get a divorce and file myself?

Any advice is greatly appreciated!

I had a similar situation.

In short, unless you can document that the separate living situation is due to a temporary school program, work or something to that effect, or that you're currently going to marriage counceling, then yes, it will be an issue. My ex and I were separated at the time of filing, but filed jointly. Filed for divorce a month later. Received an RFE for evidence showing we currently live together which I obviously could not provide. Instead I provided a personal statement that we were in the process of a divorce. I got called in for an interview, where eventually the officer told me flat out that while my petition looked good, the CSC had sent the petition to the local office because we had filed jointly but didn't live together. I had the final divorce decree with me at the interview and amended it to a waiver petition. The officer told me that if I had been divorced and filed the petition as a waiver, the case "could have" been approved without an interview. In the end, he was very understanding, and the interview was the "easiest" part of the ROC process. However, I would not recommend anyone do the same.

Married couples living separately is a major red flag. For purposes of removing conditions, you are either married or you're not. "Separated" does not exist in the USCIS dictionary.

If you do file jointly, prepare to add a detailed personal statement from both of you as to why you're living separately, and prepare to both answer detailed questions and to document the circumstances.

The decision as to whether or not to get divorced shouldn't be dictated by immigration law, but in the context of removing conditions, the reality is that it is.

Edited December 20, 2015 by JayJayH

[JayJayH 546]

Hi Damara,

thanks, those are some helpful words.

I was of course thinking way ahead. I agree that life should come first, but I believe its good to look at the system and set things up so that they can later go as smooth as possible. For example, collecting whatever evidence is needed later for USCIS in advance is certainly helpful. For us divorce would also be one of those things, because for our situation our legal status doesn't really change how we can live our actual relationship.

But you made me reconsider, why not wait, let things cool off, and see what life brings since there is really no pressure to do divorce right now. Things can get a little heated when people separate, and having legal issues in the back of your mind surely doesn't help

Also, I am now considering hiring a lawyer because it's a pretty complex case already...

Thanks again!

Damara gave you some excellent advice, and has given a lot of excellent advice on this forum regarding I-751 petitions.

I should add that I live in California, where even uncontested divorces take at least 6 months. Mine took 10 months. If you live in a state where divorce is a quicker process, you have more leeway. If you live in California, or any state where divorce can take months, it can severely complicate things if you're in the middle of an immigration process.

Keep in mind, as Damara mentioned, that if you are legally married and file jointly, the your spouse HAS to appear for the interview, even if you have filed for divorce. You can only file a waiver petition (or amend to waiver) if you have the final divorce decree. If you and your spouse are on good terms and your spouse doesn't mind attending the interview, that's one thing, but if things go sour (as they can) and your spouse is never heard from again, your joint petition will be denied for failure to appear.

I hired an attorney for my case. In the end, everything turned out well, but I was fairly nervous at one point when my ex had moved out of state, I had an interview for a joint petition, and my divorce case was on 9.5 months still with no divorce decree. I was able to reschedule my interview, and received the final divorce decree in time for the next interview date.

Edited December 20, 2015 by JayJayH

[gerus 0]

Thank you for sharing your experience and recommendations. It's great to hear from someone who has already gone through the process. We will try to make the best of the situation with all the information we have so far.

[JayJayH 546]

Thank you for sharing your experience and recommendations. It's great to hear from someone who has already gone through the process. We will try to make the best of the situation with all the information we have so far.

Let us know it goes!

Best of luck.