Seeking Advice for my soon-to-be Ex-wife

[Trymester3 6]

Hello, she is a Japanese citizen and current US Resident w/conditions. Soon, she will have to apply to remove the conditions and has a deadline in Feb. 2017. I will be filing for divorce because we cannot coexist. Still, I do believe she wants to remain in the country, so I would like to provide her some guidance. I do not want to wait until after her Residency conditions have been lifted to then file for Divorce. I need to get this divorce started now. I am a US Citizen (pretty obvious). What advice can you provide in this matter?

She is currently employed, but I don't believe her job will provide her with any sort of sponsorship. There are no kids and no property.

Despite the flag in the corner, we both live in the USA.

Edited November 20, 2016 by Trymester3

[EM_Vandaveer 2,408]

She needs to file with a divorce waiver.

[Anitafeliz 1,133]

She doesnt need sponsorship you are on hook for that until she becomes a citizen or 10 years have gone by or she abandons her residency.

But she doesnt need you to ROC only needs proof marriage entered into in good faith...

[Unlockable 7,314]

She could file with a divorce waiver. Just make sure she has all the appropriate paperwork after the divorce.

As for sponsorship... YOU are her sponser. Take a look again at the affidavit of support you signed. You will see that you will provide for her even if you two divorce.

[Mollie09 1,543]

I think you mean immigration sponsorship from work. She won't need it, she can remove conditions and get her permanent green card even if you're divorced/divorcing when she applies. You'll have to be divorced for her to be approved, though.

[Trymester3 6]

Well, I'm not sure how long the divorce will take, and I don't want to lie and say that the marriage is still good just so that she can beat that "removing green card conditions" deadline. What do you guys recommend as the best course of action.

[Mollie09 1,543]

File for divorce ASAP. If you don't have a decree by the time she has to file, file anyways and she'll get an RFE for the decree.

[EM_Vandaveer 2,408]

Exactly. If you are filing for divorce, she can file the divorce waiver I-751 when her filing window opens even if the divorce isn't final yet. Once USCIS gets to her applications (which will be at least 6 months after filing, but could be 8-10 months) they'll send her an RFE for the divorce decree. She'll have 89 days to reply to the RFE. So most likely by then, she'll have it and will be able to send it.

[Youssefyoussef 4]

IF you filled for divorce and its a friendly divorce, also if you guys have no kids or tones of money or houses together that will complicate the process of divorce, it will not take long time. my ex-wife and I got divorced 30 days after she filed, and next month i am filling for I751 as waiver to remove condition on my green card.

[Ash.1101 1,756]

IF you filled for divorce and its a friendly divorce, also if you guys have no kids or tones of money or houses together that will complicate the process of divorce, it will not take long time. my ex-wife and I got divorced 30 days after she filed, and next month i am filling for I751 as waiver to remove condition on my green card.

It'll always depend on with or without lawyer and wait times in your state.

My divorce to my ex husband did have a kid involved, but he waived his rights to the entire thing. Since I didn't have a lawyer though, I did it pro se through the court system, it took about 6 months for the county's attorney's to go over my paperwork to make sure it was fit to be put in front of a judge. My papers just had to wait in a VERY long line to be seen and approved. Took less than 3 days to get the decree and other papers drafted, took 6 months to see a judge due to having no lawyer lol.

[Trymester3 6]

Exactly. If you are filing for divorce, she can file the divorce waiver I-751 when her filing window opens even if the divorce isn't final yet. Once USCIS gets to her applications (which will be at least 6 months after filing, but could be 8-10 months) they'll send her an RFE for the divorce decree. She'll have 89 days to reply to the RFE. So most likely by then, she'll have it and will be able to send it.

Thank You all for the advice. You guys say that the government may not get to her ROC Green card application until 6 months after they receive it. Her green card expires Feb. 17, 2017. Does this mean she'll be in the country with an expired Green Card before the government gets back to her?

Also, since she will file with a divorce waiver, should she put in for a name change before sending in the ROC paperwork, or should she wait until the conditions have officially been removed on her green card and then ask for a name change (since the name change may not be official until after her Feb. 17 deadline? I just don't want those in charge of granting her the removalbid conditions to be confused.

Also, sorry if the questions are stupid or confusing, but I don't know where else to ask these.

[Villanelle 4,122]

Ok guys, lets remember there are other options available. She does not need to wait for her divorce and file under the divorce option. She can, but she does not have to.

Trymester- everyones situation is unique. You guys are in a particularly unique situation. So you BOTH have some options. You have to remember the removal of conditions (ROC) process is hers. It is her application. You can choose to support the application or not. She can choose to allow you to support it or do it on her own. You have to look at it like you would one of those flow/decision making charts where each yes or no answer will lead you to the next step. Different answers take you down different paths.

So the first question is filing jointly yes or no? If you are legally married (you can be in divorce proceedings) so as long as you do not have a final decree you are legally married and can file jointly. You have to choose if you want to support her joint petition, she has to choose if she wants your involvement since you are separating.

If you file jointly, you need to disclose in your packet (via a letter describing your situation) that you are in the process of divorcing but applying jointly anyway. Send in all the evidence to support the application. You can find what you need to send a strong packet in the forums. When they get to processing it (in several months) they will send her a RFE asking her if she wants to switch to a divorce waiver and to present the decree. She can decline and remain in the joint petition if you both still want to. You guys will most likely have an interview. They may pressure her or ask again in the interview to switch to a divorce waiver, however she does not have to, she can be processed on the joint application. If at any time during the waiting for the approval from USCIS the divorce becomes final and you get the decree, she needs to notify them of it and you will no longer be able to use the joint petition and she will have to be changed to a waiver application. If at any time you or she decides a joint application is not what is wanted anymore- she can switch to a waiver or you can contact them and withdraw yourself from the joint petition causing them to force her into a waiver application.

In this scenario re her name change- she can attempt to fill out the ROC paperwork with her maiden name in hopes they will issue the new card as such. They may not. Name change issues due to marriage are a bit complicated. Its easy to go one way but harder to go back. Once you take a new name a lot of times you need official paperwork allowing you to undo it. Ive never encountered anyone seeking to go back to their maiden name on a GC w/o a divorce decree, so I do not know how USCIS views it. I know some DMVs and gov places will not allow it w/o a court order, other places view it as both your maiden name and married name are yours so you can use them both. So if ROC goes faster then the divorce and you remain in the joint petition, AND they insist she uses her married name, she will have to pay for a new card with the maiden name. This is expensive and will take many months of waiting to receive. If the divorce happens before the ROC and you switch to a waiver- well she can then adjust her name accordingly and her new card should be issued the way she wants it.

If you guys do not want to file jointly- she will file right now and check off the divorce waiver box even though she does not have the decree along with her supporting evidence that you can help her with- again look through the forums for what she will need. She will get an RFE for the decree and a limited time to respond. If she does not have it to send back then in very simple terms (because it is much more technical then this) but basically the officer at USCIS with her file has to deny her and close her file because they can not keep it open waiting for her to obtain the decree. Its an administrative process. It will make her file get sent to the immigration court where the judge can then hold her file and give her however much more time she needs to obtain the decree. She would present her decree to the court and the judge would technically review her ROC and be the one to approve it. You can go through this process yourself- however many people obtain attnys if they end up in this situation because dealing with the court can be difficult and overwhelming. They have specific rules and it can be hard to navigate. The forums dont really have information about the specifics of the process or dealing with the court. I also want to note that at no time is the immigrant out of status or unable to work.

I believe the ROC process is currently taking anywhere from a min of 6 months to 1 year to process. Its rare to take less then 6mo but not that surprising if it goes over a year. It depends on the number of applications they have and how much of their resources they are using to work on them. So I would suggest looking at how long you expect your divorce to take before you get a decree, and if you are interested in supporting the application and how she feels about it as well. People dont usually involve the ex in the joint application due to separation issues. However there are rare couples that split amicably and have used the joint filing method even when being in divorce process with no issues.

[EM_Vandaveer 2,408]

Thank You all for the advice. You guys say that the government may not get to her ROC Green card application until 6 months after they receive it. Her green card expires Feb. 17, 2017. Does this mean she'll be in the country with an expired Green Card before the government gets back to her?

Also, since she will file with a divorce waiver, should she put in for a name change before sending in the ROC paperwork, or should she wait until the conditions have officially been removed on her green card and then ask for a name change (since the name change may not be official until after her Feb. 17 deadline? I just don't want those in charge of granting her the removalbid conditions to be confused.

Also, sorry if the questions are stupid or confusing, but I don't know where else to ask these.

You misunderstand me. Once she files, she'll receive a NOA1 within weeks. This will extend her GC by a year. Of course she won't be out of status.

[Trymester3 6]

If you guys do not want to file jointly- she will file right now and check off the divorce waiver box even though she does not have the decree along with her supporting evidence that you can help her with- again look through the forums for what she will need. She will get an RFE for the decree and a limited time to respond. If she does not have it to send back then in very simple terms (because it is much more technical then this) but basically the officer at USCIS with her file has to deny her and close her file because they can not keep it open waiting for her to obtain the decree. Its an administrative process. It will make her file get sent to the immigration court where the judge can then hold her file and give her however much more time she needs to obtain the decree. She would present her decree to the court and the judge would technically review her ROC and be the one to approve it. You can go through this process yourself- however many people obtain attnys if they end up in this situation because dealing with the court can be difficult and overwhelming. They have specific rules and it can be hard to navigate. The forums dont really have information about the specifics of the process or dealing with the court. I also want to note that at no time is the immigrant out of status or unable to work.

I believe the ROC process is currently taking anywhere from a min of 6 months to 1 year to process. Its rare to take less then 6mo but not that surprising if it goes over a year. It depends on the number of applications they have and how much of their resources they are using to work on them. So I would suggest looking at how long you expect your divorce to take before you get a decree, and if you are interested in supporting the application and how she feels about it as well. People dont usually involve the ex in the joint application due to separation issues. However there are rare couples that split amicably and have used the joint filing method even when being in divorce process with no issues.

Thank You for your detailed response. Our divorce does not seem like it will take long at all, and I am fine with helping her file with a divorce waiver (I was going to help her anyway as English is not her first language). I do not want to file jointly.

Out of curiosity though, is there any benefit to filing jointly even though we are in the middle of a divorce?

Based off what I understand, she could apply for ROC today if she wanted to (even though we don't have the divorce decree). The ROC probably wouldn't happen for like 6 months. If I receive the divorce decree in 3 months, would I send it in, or just wait for them to send her an RFE first?

Also, your reply was so good. What state do you live in? I live in New York, so I hope that everything you wrote still applies to our situation.

[Villanelle 4,122]

USCIS is federal, so the same rules apply no matter what state you are in. Divorce laws are state specific. Some states require min separation periods (1-2 yrs) some require additional hearings if there are kids- lots of things that can make it take time. Some places move quick. Good for you if you are in a quick location!

The sooner she applies- the sooner they will get to her packet. So when you send it, its first reviewed just for signatures and basic acceptability. You get the NOA receipt extending your status and a fingerprint appt generated automatically. You wait "in line" in the pile for an actual person- an officer to pick up the file and look at it to work on it. When they do, they will see it does not contain the decree and RFE for it. So again, the sooner you mail it the sooner it will end up in their hands and the sooner you will get the RFE. Since the RFE has a limited window to respond- and if you dont have it, it starts the ball rolling towards immigration court- you would want to wait until the last possible moment (with in reason) to send your ROC packet. This increases the odds that you will have the decree when the RFE is sent out or needed back for response. You have to file before the card expires, that is the last possible date. You can file any time in the 90 days prior to it expiring or at any time you become separated or divorced, but again, you guys would want to wait until about a week or two before the card expires due to the timeline you have going on.

Filing jointly can help if you are both on board because they would evaluate the bonafides of the marriage based on your joint testimony rather then just hers. If you guys have a decent amount of co-mingling evidence then your support wouldnt be needed as much to tip the scales. For people that dont file joint- they can still show some support by giving the immigrant a letter to include explaining how the marriage broke down and that it was legit. The officer will weigh the evidence accordingly.

If you file with a waiver and do not include the decree, you would want to wait for the RFE asking for it. Its never a good idea to mail stuff with out them asking for it as it takes a long time for things that were unsolicited to be matched up to your file. Sometimes it never gets matched up. So you could obtain multiple copies of the decree and try mailing one in unsolicited, but you may end up getting the RFE anyway. Make sure you get extra copies when its issued now- as many people dont realize how often they are needed in the future and often obtain just one copy.

If she files with a waiver (and send the decree later) she may or may not have an interview depending on the strength of her packet. If she has trouble with English then you need to make sure she has a translator available for the interview. I do not believe Japanese is a common language that they would have someone there that could do that, and often they dont do that. I know you can ask ahead of time in an infopass appt for a translator, but if memory serves me I believe people are instructed to bring their own translator with them (?). You can call the 800 USCIS # however local offices usually have their own policies on how they do things, so you are better off going to them via infopass and asking how to go about it if an interview is set up. Otherwise she will go the interview and be turned away and have to reschedule if she can not communicate with them or brought someone they dont allow as her translator. (not sure how much she struggles with English- if its just the standard legal nonsense of the forms or something more)