Filing I-751 jointly while separated

[Dan C. 18]

Hello all,

A good friend of my wife and I is going through a bit of a tough situation. She asked my wife and me for advice, because we've already been through the I-751 process.

She is separated from her USC spouse, and is planning to get a divorce. They are living apart.

From what she's told us, he is willing to help her file her I-751 jointly, so she can get her conditions removed, and become a full permanent resident. He doesn't want her to get deported. Divorce would presumably happen after she got her 10 year green card. The marriage was entered into in good faith, and there are plenty of people that can attest to that—it just didn't work out.

Is it acceptable from a USCIS standpoint to file the I-751 jointly, even though they won't be staying together long-term?

It's a bit of a gray area, as I see it. They are still married, in that they haven't divorced yet, filed for divorce, or made any legal change to their status (there is no legal separation in our state). But they aren't living together, and there's little to no chance of reconciliation.

My instincts (if it were me), would be for her to file for divorce, file the I-751 solo based on divorce, and include evidence of a bona fide marriage. It seems like this is more straightforward about what's going on—and that way, if they get called for an interview, and he has a change of heart and decides he wants her out of the country, he can't just not show up for the interview. For me, it's risky to file together under the assumption that things will stay amicable.

What do you guys think?

Edited January 22, 2016 by Dan C.

[greenie80 3]

I think that if they truly stay friendly, this could work, but they have to continue to use the same address and when they file ANYTHING, they have to state that they are still "married" and continue to put each other down as emergency contact, keep their bills together etc etc. If any of them change address through USPS, a government agency, USCIS is able to see that so unless they get their explanations ready why that is, they could be in trouble. Tell them to keep in mind that USCIS is capable of running credit checks and would be able to tell from those if there are any discrepancies. Unfortunately, it is not really legal, but if they think they can still live their lives stating that they are married while they are no longer living together, this could work for them.

the other option i have seen is for her to file on her own but have her ex husband either write an affidavit stating why they split up or even better, for him to accompany her to her interview a year down the line and tell the officer in person.

[Cheezees 1,514]

Do not misrepresent the marriage in any way. I would advise her to divorce and file. If the marriage was entered into in good faith then there will be no problems along the way. Please tell her not to entertain the thought of pretending to live together for some perceived convenience.

[Cheezees 1,514]

Unfortunately, it is not really legal, but if they think they can still live their lives stating that they are married while they are no longer living together, this could work for them.

Please do not advise others to "try" anything that isn't strictly legal.

[Harmonia 211]

They should divorce and file. And let her know there's no way he can decide he wants her out of the country. His wants and desires has nothing to do with it. She's perfectly able of filing to ROC with a divorce wavier, after they're divorced.

[greenie80 3]

Please do not advise others to "try" anything that isn't strictly legal.

This is a forum where people can comment their thoughts; the user did ask for that. You should stick to giving your comment and be done with trying to tell everyone else how to answer. Have a lovely day xx

[Cheezees 1,514]

This is a forum where people can comment their thoughts; the user did ask for that. You should stick to giving your comment and be done with trying to tell everyone else how to answer. Have a lovely day xx

No. Here's why:

As per the VJ Terms of Service you agreed to:

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Condone or instruct, either directly or indirectly, others on how to commit fraudulent or illegal immigration activities in any way, shape, manner or method."

Have a lovely day as well.

[Dan C. 18]

OK folks, thank you...let's not get too up in arms. I understood both points from both of you, and I don't think anyone here is condoning anything that's not strictly legal, merely saying that some people do it.

[Penguin_ie 5,993]

This is a forum where people can comment their thoughts; the user did ask for that. You should stick to giving your comment and be done with trying to tell everyone else how to answer. Have a lovely day xx

***** Mod note: You are incorrect. When you, and everyone else, signs up to use these forums, they agree to the TOS, which states that we do not condone, advice on or discuss illegal actions in any way. This discussion will stop here,. *******

[Villanelle 4,122]

This topic has come up a few times recently. If you browse the Effects sub forum you can find a few posts on the first couple of pages under titles like divorcing during ROC, or separated during 751/before 751.

Not to rehash what was already brought up- representing that they are 'married' and showing joint evidence of living together when they are actually separated but still legally married is misrepresentation. This should not be done and honestly there is no reason to because there is a procedure for those who are separated but still legally married.

Since they are still legally married- they can submit a joint petition or a waiver petition. There is nothing illegal about submitting a joint petition when you are separated. IF you file joint in this case however you MUST notify them in your packet that you are in fact separated but still legally married. If you do not and you are approved with out that information later when they discover this fact you will have a slew of problems under the heading of the decision was made with out all the information. So you must disclose it.

When you file a joint petition and they discover you are separated/divorcing/divorced then they give you the option of converting to a divorce waiver OR remaining in the joint petition and being evaluated on its merits. You do not need the final divorce decree if you remain in a joint petition to be approved. Most certainly you will get an interview and both parties need to attend.

If you initially file with a waiver or later convert to a waiver- you can submit the divorce filing if you dont have the decree yet and its accepted and used as proof of being eligible for the waiver box. They will not approve you in this case with out the final decree. Some people who ROC with the divorce waiver get interviews- some dont. The interview with a waiver would be for the alien only.

The petition must be submitted before the card expires. If you want to file as a waiver- send what you have as evidence along with proof the divorce is pending and you will be RFE'd for the final decree. If you do not have it in time to respond they will 'deny' you and you will have to go to immigration court where you can present it if you have it or they will give you time to present it.

If you want to file joint- then file joint being sure to note you are in divorce proceedings or separated. They will follow procedure and RFE you asking if you want to switch to a waiver and submit the decree. You can choose to remain in the joint filing however most people do not go this path because it requires an extreme amount of trust in the other person to show up at the interview and not say anything that could jeopardize the outcome. If the spouse chooses not to attend at the last minute you can switch to a waiver at that time. There is no way a bitter spouse can 'prevent' the ROC by simply not appearing, however if they appear like stated above they can jeopardize the outcome.

It appears you are familiar with the ROC process so you know it takes a long time. People change. What someone is 'good with' right now may be different in the future esp if one party starts dating or moving forward in life. The ex spouse may realize they are still going to be on the hook for the 864 if the ROC is approved and the alien doesnt leave the country. This can be an issue for some esp if they are going to petition another foreigner in the future (they would have to count the previous alien in their household size as long as the 864 is in effect). Or both parties may appear to be in agreement that its over but in reality one is still holding out hope for a reconciliation and if it doesnt happen bitterness ensues.

There have been cases on VJ where the couple separated and went the joint petition route and had no issues. They were advised to go it alone with a waiver but were confident in their ex spouse and specifics of the situation. No one here knows the couple except for you so no one here is going to confidently suggest they file jointly. I would go as far as to even say even with knowledge of them -you cant predict the future.

There is a path for them to take (the waiver) to ensure the outcome is fair and not influenced by any one else (the ex spouse) so theres no reason to not take that route.

[Ortolan 381]

OP, I agree with your instincts: it's so much easier to just be plain about what's going on, and it's the right thing to do, in any case.