Filed i-751, got an RFE, separated and beneficiary wants to stay

[Cathi 5,748]

Next steps, 1) respond to RFE. They approve -> Done! 2) If not, they will ask you guys to come to an interview. It will be up to you to accompany your wife to the interview or not. But the way you described how you guys stayed friends, you probably will. At that point, whether you guys are separated or not, if you kept a bona fide marriage until the separation, the interview will be a piece of cake. Good luck!

do not so this!!! You will be knowingly committing material misrepresentation-visa fraud-if you do this. When they find out you are separated and have been for a while they will revoke her green card and send her packing all the way back from where she came from with a lifetime ban. And don't think for a minute thy will not find out, during my husband's interview they knew things about us that we never told them. Your ONLY option is to divorce and for her to file a divorce waiver. Period. End of story!

[charmander 692]

do not so this!!! You will be knowingly committing material misrepresentation-visa fraud-if you do this. When they find out you are separated and have been for a while they will revoke her green card and send her packing all the way back from where she came from with a lifetime ban. And don't think for a minute thy will not find out, during my husband's interview they knew things about us that we never told them. Your ONLY option is to divorce and for her to file a divorce waiver. Period. End of story!

How? Until you are divorced, you are not. There is a divorce waiver, but there is no separated/considering divorce waiver. They could go to interview together and tell the truth under oath that they are currently separated, haven't filed for divorce yet, but entered the marriage in good faith. Where's the fraud in this? I didn't suggest them to go to interview together and pose as a happy couple.

[EM_Vandaveer 2,408]

How? Until you are divorced, you are not. There is a divorce waiver, but there is no separated/considering divorce waiver. They could go to interview together and tell the truth under oath that they are currently separated, haven't filed for divorce yet, but entered the marriage in good faith. Where's the fraud in this? I didn't suggest them to go to interview together and pose as a happy couple.

I agree 100%. They are still married. As long as they are truthful about being separated at a potential interview, there is no problem.

[Shauneg 762]

Let's say they are wavered for the interview and automatically approved. Is it fraud or not for not disclosing the separation?

Going to an interview together and telling them is fine and all...very truthful and forthcoming. Everyone here is assuming you'll get an interview though. Many don't.

[EM_Vandaveer 2,408]

Let's say they are wavered for the interview and automatically approved. Is it fraud or not for not disclosing the separation?

Going to an interview together and telling them is fine and all...very truthful and forthcoming. Everyone here is assuming you'll get an interview though. Many don't.

They got an RFE and they don't have much to send as an answer. So it's likely they'll end up with an interview.

IMHO, they are married, it does not really matter if their marriage is perfect or falling apart, they may file jointly, as long as they are still married. The point is that marriage was entered into for the right reasons, not that it is the perfect marriage.

[Shauneg 762]

How? Until you are divorced, you are not. There is a divorce waiver, but there is no separated/considering divorce waiver. They could go to interview together and tell the truth under oath that they are currently separated, haven't filed for divorce yet, but entered the marriage in good faith. Where's the fraud in this? I didn't suggest them to go to interview together and pose as a happy couple.

If they filed while still together, the 751 will be considered still even if separated. They will consider it an ipso facto waiver since they're not yet divorced....and extend her lawful presence until she is and produces a divorce decree to them. Problem is they were already separated.

Fact does remain that they are married though.

[EM_Vandaveer 2,408]

If they filed while still together, the 751 will be considered still even if separated. They will consider it an ipso facto waiver since they're not yet divorced....and extend her lawful presence until she is and produces a divorce decree to them. Problem is they were already separated.

Fact does remain that they are married though.

Exactly, so unless they divorce soon, they can't produce a divorce decree.

[Shauneg 762]

Exactly, so unless they divorce soon, they can't produce a divorce decree.

My point...so it's not an issue at citizenship time she should notify them and they'll hold the case until a decree is produced or the marriage is reconciled.

[templeton 120]

How? Until you are divorced, you are not. There is a divorce waiver, but there is no separated/considering divorce waiver. They could go to interview together and tell the truth under oath that they are currently separated, haven't filed for divorce yet, but entered the marriage in good faith. Where's the fraud in this? I didn't suggest them to go to interview together and pose as a happy couple.

I agree 100%. They are still married. As long as they are truthful about being separated at a potential interview, there is no problem.

They may be avoiding fraud, but what immigration officer is going to let her remove conditions? The OP is outright stating that he lied on the application that they have a bonafide marriage and that they're only saying they're together to help her get ROC. If just being married "on paper" was enough to remove conditions, they wouldn't be getting RFEs, would they? This whole situation at this point is very definition of marriage for immigration benefit only. The entire point of doing ROC is to demonstrate to USCIS that the conditional resident has earned the right to become unconditional based on their ongoing and BONAFIDE marriage to the USC. How is it going to going to go over during an interview when they admit they're just putting off the divorce until after she gets the 10 year card?

Probably something like this: "I appreciate your honesty. Removal of conditions denied."

The point is that marriage was entered into for the right reasons, not that it is the perfect marriage.

He has stated they have amicably broken up. That's not an imperfect marriage, that's non-existent. That it was entered into in good faith is the whole point of a divorce waiver, which is clearly a better and much more viable path.

[Shauneg 762]

If she notifies them they are currently separated they will hold her case until a decree is presented and continue as if it was filed a divorce waiver case. This is exactly what happened to my currently wife.

Filed for removal Aug 15,

Separated Nov 15...notified USCIS,

Divorced May 16...supplied decree to USCIS,

10 year green card issued June 16......no interview....no questions, no issues.

So far they've done everything by the law and with precedence.

Edited August 23, 2016 by Shauneg

[charmander 692]

This is the only official document I could find on I-751s filed prior to termination of marriage. It's from 2009, not sure if there is a more recent of this, if someone could find it please share. It's a 3 page long document, worth reading.

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

[Harmonia 211]

They may be avoiding fraud, but what immigration officer is going to let her remove conditions? The OP is outright stating that he lied on the application that they have a bonafide marriage and that they're only saying they're together to help her get ROC.

He has stated they have amicably broken up. That's not an imperfect marriage, that's non-existent. That it was entered into in good faith is the whole point of a divorce waiver, which is clearly a better and much more viable path.

They presumably had a bonafide marriage that wasn't entered into for immigration benefits. They are still amicable and not divorced. That's the definition of an imperfect marriage. Maybe they will make up, maybe they won't. They don't hate each other. He isn't on here ranting about deporting her and it was all a fraud. Maybe time apart will do them good. Maybe it won't. No one knows the future. You shouldn't advise they divorce when they aren't ready.

[Shauneg 762]

This is the only official document I could find on I-751s filed prior to termination of marriage. It's from 2009, not sure if there is a more recent of this, if someone could find it please share. It's a 3 page long document, worth reading.

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

Like I said legal and with precedence.

[Ash.1101 1,756]

I was surprised it took someone so long to point out the possible fraud.

I do agree about maybe just divorcing. You're only staying married for ROC, you don't live in the same locations anymore, and you've both seemed to have moved on. With the proof you have, it looks less shady that ya'll got a divorce than ya'll saying you're still together but rocky.

They've been separated for a year next month, so half of the two year GC. If this was a recent separation then still being married while doing ROC might make sense and seem more honest. A year later, ehh.

Just as a note for the above, he does want to know if divorce is the better way. Because he's willing to do anything to give her a GC. He doesn't have anymore proof of bonafide marriage because they were only truly in a married situation (or playing house) for a year, and he even said that it wasn't healthy and that's why they broke up.
In this case, if he has no more proof than what he's sent, but he's determined to keep her in the country, a divorce might be the best option.


At the same time here, I don't really feel comfortable saying any of the above because he's doing ROC with her, what ever it takes, knowing that they WILL divorce and that they have been separated for a year but staying together BECAUSE he wants to do ROC for her and didn't think divorce waiver was a better option. Fraud doesn't have to be an outright lie, it can just be a shade to cover true intentions.


If you go to an interview, let us know how it goes, I'm honestly curious on what USCIS will ask them and what the answers will be.

I do agree, if "When we got married we were legit" was enough, people wouldn't have so much trouble ROCing.

[EM_Vandaveer 2,408]

If they separated a year ago and just now received an RFE then they were maybe separated for 6 months at most when they filed for ROC. So NOT half the time of the 2-year GC.