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

[EM_Vandaveer 2,408]

There were cases here when people went to a ROC interview together with their separated spouse, were upfront about it and got approved.

If the point wouldn't be bona fide marriage WHEN the marriage occurs then there wouldn't be such a thing as a divorce waiver.

[Ash.1101 1,756]

I don't know, he was asking about change of address BEFORE sending I-751. He asked about how to change the address in October, they seperated in September, also made sure to ask and see if the beneficiary and the petitioner had to change their addresses seperately.

I dunno, this whole thing makes me weary. I wish them the best of luck in figuring out what they want to do.


And again, he said they have nothing more to respond to the RFE with. So it will most likely end in interview. And on the application he said they were married and that nothing had changed, aka not separated.

http://www.visajourney.com/forums/topic/569239-change-of-address-before-filing-i-751/

Edited August 23, 2016 by Ash.1101

[Shauneg 762]

It doesn't matter when they separated before or after the 751 is filed. The only way to ROC while STILL married is jointly...even in divorced proceedings or separated. They did as they were supposed to. He could of not signed and her ROC would have been automatically denied with no chance for waiver because they are still married, separated or not. The only thing they have to do now is notify them of the separation. And of course respond to the RFE. Well she, not he.

[Kevinbolts 0]

Thank you so much for the responses. I am still unsure of what to do... but I have a much better understanding from your help. There is no 100% correct guideline of my situation so it is very unclear. I would really like to go to the USCIS office in my local area and ask for assistance. Do you all think that this would be good? If not, we just plan to submit more evidence (which won't be much) and then most likely get an interview. The only reason to submit more evidence would be to keep the case going since not responding to the RFE would cause deportation. At the interview come clean with being separated, all details, whole nine yards.

Edited August 24, 2016 by Kevinbolts

[Merrytooth 5,748]

So when are you planning to file for divorce? Till she gets her 10 year green card?

Or waiting for reconciliation?

[Kevinbolts 0]

We will file for divorce as soon as we know what to do with the immigration process? There was no timelime for divorce. Just separated and stayed friends.

So when are you planning to file for divorce? Till she gets her 10 year green card?

Or waiting for reconciliation?

[Merrytooth 5,748]

We will file for divorce as soon as we know what to do with the immigration process? There was no timelime for divorce. Just separated and stayed friends.

If she intends to file for US citizenship (N-400 Naturalization for Spouses of U.S. Citizens) in the future, she probably won't qualify to file under 3 year rule, since you have to live in marital union with the same U.S. citizen spouse during such time.

Some people filed for divorce immediately after ROC, and got further scrutiny by USCIS during the N-400 Naturalization under 5 year rule.

Suspicious timeline - stayed married just to get 10 year green card.

So I suggest figure out what both of you want, and hopefully the future immigration process will be smooth sailing.

Edited August 24, 2016 by Merrytooth

[squareleg 69]

Respond to RFE - Interview - Denial > because the marriage has failed. Unless you are able to scam USCIS to make believe that your marriage is valid.

I wouldn't jump to fraud but case could be made for mis-representation.

The immigrant has to return to their homeland as their intent of marriage in good faith is not valid anymore. Good luck.

[Shauneg 762]

Respond to RFE - Interview - Denial > because the marriage has failed. Unless you are able to scam USCIS to make believe that your marriage is valid.

I wouldn't jump to fraud but case could be made for mis-representation.

The immigrant has to return to their homeland as their intent of marriage in good faith is not valid anymore. Good luck.

No it's respond, notify of separation, case will be on hold until decree presented, then processed like it was a divorce waiver case. Without ever doing a waiver.

[Kevinbolts 0]

Thank you for the research! This helped a lot! So basically, I respond to the RFE with official paperwork saying that we have initiated/filed for divorce, and from there they will issue an interview to determine whether the marriage was bona fide or not to remove conditions. Is this correct?

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

[Shauneg 762]

Thank you for the research! This helped a lot! So basically, I respond to the RFE with official paperwork saying that we have initiated/filed for divorce, and from there they will issue an interview to determine whether the marriage was bona fide or not to remove conditions. Is this correct?

Yes but they'll hold the case until she presents a decree. Edited August 24, 2016 by Shauneg

[Kevinbolts 0]

Thank you so much!!!! You and everyone else on here has been the hugest help!

Yes but they'll hold the case until she presents a decree.

[Villanelle 4,122]

Thank you so much!!!! You and everyone else on here has been the hugest help!

I dont know why this thread went on for so many pages...

You got most of the correct advice just spread out a bit. Please remember this is her process. She is the immigrant. So she filed a joint ROC petition. This was a valid option for her to do as you guys were legally married when you filled it out and you (the spouse) were willing to support the petition again when it was filled out and sent in.

I was a little worried when you were posting that you were wavering in your support of the petition. If so your wife will have no choice but to file for divorce and check the divorce tic box and present them with the final decree and proof of the marriage to get approved.

But you say you will be remaining supportive of the petition. Thats great. Because you and your wife are still legally married you are allowed to file jointly to remove conditions. It does not matter if you are separated. I dont care what people on here "feel" or "believe" its not policy. Policy states if it brought to their attention that you are separated then they will give you the immigrant the choice to remain on a joint petition or switch to a divorce waiver. This sentence covers a variety of situations. For Kevins situation because he wants to remain supportive of the petition what will happen is the following:

They got an RFE. Probably because they had very little bonafides evidence. IF they respond with what he suggested above (notifying them of the separation and wanting to remain in a joint petition and more bonafides evidence) then a few things can happen-

-they can get the standard notice people get when a separation is discovered which is an RFE asking if you want to switch to a waiver and how to do so. (this RFE for the divorce decree has been posted on here many times) and then later on the interview notice that they both have to go to.

-No RFE just directly to a joint interview notice where they will then ask her in person if she wants to proceed or come back when she is divorced. Please note they may aggressively push her or both of you and suggest to do so. You dont have to. You married in good faith. And this is about the beginning of the marriage not the end of the marriage. I mean dont get me wrong the end matters because yeah you cant remain married for benefits.

Your decision on whether or not to remain married should have NOTHING to do with immigration status. Your wife will not be negatively impacted at this point in the process. It might put her on a different path but so what. Thats how the cookie crumbles.

[Cathi 5,755]

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

he stated that they planned to go to the interview and not tell them about the separation, to act like everything is hunky dory when it isn't. How is this NOT fraud. They will be intentionally lying in order for her to get her green card. It is fraud!

[EM_Vandaveer 2,408]

he stated that they planned to go to the interview and not tell them about the separation, to act like everything is hunky dory when it isn't. How is this NOT fraud. They will be intentionally lying in order for her to get her green card. It is fraud!

I may have missed something, I didn't realize OP ever mentioned a potential interview. If you read my posts I always made clear that they should be 100% truthful at an interview, I remember a case here on VJ where a separated couple attended ROC interview together, they were truthful and the ROC was approved.

Edited August 25, 2016 by EM_Vandaveer