Divorce in the middle of ROC

[AKSinghSingh79 143]

Hi VJ Community,

 

As unbelievable as it is for me to say this, my husband and I are getting a divorce. I'm the USC, FYI. It was me who initiated the divorce as our marriage has reached my limit of tolerance. I did everything I could to save it, talking to him, going to see a marriage counselor, but he didn't bother attending the sessions. I asked him to move out last summer and him and I have been separated since August 2016.

 

This is coming at a terrible time, as it is right in the middle of ROC. I filed his paperwork for him back in March 2016 and it's still processing at VSC. My question is what do I do now? Should I withdraw the petition? No divorce paperwork has been filed yet as my (ex) husband is not cooperating. He's afraid it will affect his immigration status. I know there is a waiver for divorce but how does that affect a pending petition? I do want to help him but I'm certainly not going to lie and say we are still a happily married couple. 

Any advice would be appreciated. Thanks.  

[Mollie09 1,543]

25 minutes ago, AKSinghSingh79 said:

 I filed his paperwork for him back in March 2016 and it's still processing at VSC. My question is what do I do now? Should I withdraw the petition? No divorce paperwork has been filed yet as my (ex) husband is not cooperating. He's afraid it will affect his immigration status. I know there is a waiver for divorce but how does that affect a pending petition? I do want to help him but I'm certainly not going to lie and say we are still a happily married couple.

You can't withdraw the petition, it's not yours. For ROC, the immigrant is the petitioner.

[AKSinghSingh79 143]

Just now, F1H1I130 said:

You can't withdraw the petition, it's not yours. For ROC, the immigrant is the petitioner.

I see, so it would be up to him to withdraw the petition? Would we have to be legally divorced first?

[Unlockable 7,314]

No. He can file on his own. How far along is the ROC? 

[AKSinghSingh79 143]

1 minute ago, NuestraUnion said:

No. He can file on his own. How far along is the ROC? 

The petition was filed in March 2016 at VSC. According to USCIS, they are currently processing December 2015 petitions. 

[AKSinghSingh79 143]

So what would happen if he happens to receive an RFE or an interview request at this point? Like I said in my original post, I do want to help him but not in a dishonest way. I would gladly help him if he needed to prove we entered the marriage in good faith but I already told him I would not be attending the interview because we are no longer a couple. 

[charmander 692]

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

[AKSinghSingh79 143]

9 hours ago, charmander said:

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

Thank you for the link, very helpful!!

[Hypnos 6,576]

20 hours ago, F1H1I130 said:

You can't withdraw the petition, it's not yours. For ROC, the immigrant is the petitioner.

 

Incorrect. For a joint I-751, like this one, one or both parties can withdraw their consent to the application. For RoC, both parties are the petitioners; that's why it's called a joint petition. 

 

If the US citizen spouse withdraws from the application, USCIS will usually send a letter to the remaining petitioner/beneficiary asking them to change their filing type (to a divorce waiver, for example). 

Edited January 13, 2017 by Hypnos

[AKSinghSingh79 143]

2 hours ago, Hypnos said:

 

Incorrect. For a joint I-751, like this one, one or both parties can withdraw their consent to the application. For RoC, both parties are the petitioners; that's why it's called a joint petition. 

Thanks for the clarification. I was thinking the same thing while reading the memo. I can't withdraw the petition yet as we haven't filed for divorce yet but I will once I do. So is there any kind of formal way to withdraw a petition? Would a simple letter be enough? 

[mindthegap 2,590]

On 1/12/2017 at 8:49 AM, AKSinghSingh79 said:

I do want to help him

 

48 minutes ago, AKSinghSingh79 said:

 So is there any kind of formal way to withdraw a petition? 

With all due respect, those two statements are kind of in conflict with each other. It is not helping him by attempting to withdraw the petition, it is just complicating things unnecessarily. 

At that time you were married and filed correctly.

 

 

 

On 1/12/2017 at 8:49 AM, AKSinghSingh79 said:

I'm certainly not going to lie and say we are still a happily married couple. 

 

23 hours ago, AKSinghSingh79 said:

 I would gladly help him if he needed to prove we entered the marriage in good faith but I already told him I would not be attending the interview because we are no longer a couple. 

 

That is great that you are willing to help, and there is no need to lie, and no-one is suggesting that you do.

 ROC is about the intent at the time of marriage, and ensuring that it was not for the purpose of evading or circumventing immigration law.

Your current marital status has little bearing on this, as life goes on, s*** happens, and circumstances do indeed change. You won't be the first to have a marriage break down before/during/after ROC, and you certainly won't be the last.

 

 

 

 

 

Leave the petition as is. It was a a joint filing and at the time was correct. If the ROC gets approved by mail or without an RFE, great. If an RFE received, then try not to be difficult and provide any documents that may be required.

If he is called for an interview, then the interview notice will say this:

 

Note the part that says : "For joint and/or dependent petitions, the person through whom you gained conditional resident status MUST attend the interview with you."

 

If you don't go - which is your absolute right to choose not to do so, and no-one is forcing you to - then if divorce has formally been filed for at that time, he will be able to add a divorce waiver to the current petition when he attends by himself. If divorce filed but still in progress, then it is put on hold pending final divorce decree, which when received, should be forwarded by him. As long as he has provided evidence meeting the ROC standard and his divorce is final, he should be approved.

 

 

 

 

The only other difference then is the extra two years added onto his eligibility for filing for citizenship.

This does affect you, as you are liable under the terms of the I-864 until such time as he becomes a citizen, regardless of whether still married or not.

 

[AKSinghSingh79 143]

Thank you so much for your reply. I guess I could see how my statements would seem to cancel each other out. What I mean is, I do still have empathy for my ex-husband and don't want to complicate his immigration status but I also want to move on with my life. I see how withdrawing my petition would only complicate matters. 

 

Assuming he does get an interview request, I guess we will discuss that when the time comes. 

[Hypnos 6,576]

As the US citizen spouse, you can withdraw from the I-751 whenever you wish. 

 

To withdraw, write a formal letter giving the case details (case number, alien number, name of spouse, etc.) that states you are withdrawing from the joint I-751.

 

Mail one copy of the letter to whichever USCIS service centre the petition is currently pending at, and make an Infopass appointment at your local office and hand deliver a second copy of the letter to an officer face-to-face. 

Edited January 13, 2017 by Hypnos

[Villanelle 4,122]

4 hours ago, mindthegap said:

 

With all due respect, those two statements are kind of in conflict with each other. It is not helping him by attempting to withdraw the petition, it is just complicating things unnecessarily. 

At that time you were married and filed correctly.

 

 

 

 

 

That is great that you are willing to help, and there is no need to lie, and no-one is suggesting that you do.

 ROC is about the intent at the time of marriage, and ensuring that it was not for the purpose of evading or circumventing immigration law.

Your current marital status has little bearing on this, as life goes on, s*** happens, and circumstances do indeed change. You won't be the first to have a marriage break down before/during/after ROC, and you certainly won't be the last.

 

 

 

 

 

Leave the petition as is. It was a a joint filing and at the time was correct. If the ROC gets approved by mail or without an RFE, great. If an RFE received, then try not to be difficult and provide any documents that may be required.

If he is called for an interview, then the interview notice will say this:

 

Note the part that says : "For joint and/or dependent petitions, the person through whom you gained conditional resident status MUST attend the interview with you."

 

If you don't go - which is your absolute right to choose not to do so, and no-one is forcing you to - then if divorce has formally been filed for at that time, he will be able to add a divorce waiver to the current petition when he attends by himself. If divorce filed but still in progress, then it is put on hold pending final divorce decree, which when received, should be forwarded by him. As long as he has provided evidence meeting the ROC standard and his divorce is final, he should be approved.

 

 

 

 

The only other difference then is the extra two years added onto his eligibility for filing for citizenship.

This does affect you, as you are liable under the terms of the I-864 until such time as he becomes a citizen, regardless of whether still married or not.

 

Not everything posted above is accurate.

 

Im going to outline the options for you AK SinghSingh. If you have any questions please ask.

You guys submitted a joint ROC. Now you are separated/in process of divorce/going to file for divorce. All those terms are interchangeable for this situation. It doesnt matter what you label it- you are basically separated.  Just because papers have not been filed by either side- you are still separated (not a bonafide marriage any longer). 

 

This is what makes things tricky because there are only 2 marital statuses (for USCIS) one is married and one is divorced. They have no 'pending divorce' or separation category. However there are 3 marital statuses one can have- legal married, finalized divorced, and legally married but apart.

 

So you are legally married but apart. Which gives you the following options based on having filed a joint ROC:

 

#1- You can both remain on the joint petition and it can be approved as a joint petition even though you are married but apart. You (or he) NEED to notify them of the change in marital status from married to married and apart. The advice that its ok to just leave it as it is since it was valid at the time of submission is incorrect. You need to notify them of any changes so that they have all the information when approving the petition or else you fall into an area of misrepresentation. (Some people feel because they can be approved w/o interview they dont need to tell them or shouldnt tell them, again this is not correct).

 

So as Hypnos stated, you and your husband both need to be WILLING to remain on the joint petition. Either of you can notify USCIS that you do not want to be in a joint petition any longer and it will be converted to a waiver. If you want to remain on the petition- like I said a letter needs to be sent advising them of the change to married but apart. They will send an RFE asking if he wants to be a waiver (it may read as if he HAS to switch, but he does not). If he declines and remains in the joint and you have not withdrawn from the joint either they will most likely schedule you both for an interview based on the joint petition you are both seeking to have approved. In the interview again they will ask if he wants to switch, if he does not they will adjudicate it based on the joint evidence and joint interview.  As long as you guys do not have a final divorce decree it can be approved. You can be in process of divorce, or simply just separated with no papers filed yet. But if there is a final decree he must be switched to a waiver.

 

#2- You can withdraw your support of the joint petition and it will force him into a waiver. He will need to present the final decree to be approved on his own. He can decide he wants to do it alone and switch to a waiver, again he will need the decree to be approved.

 

Most of this is going to be about timing- It can take a long time to get a divorce in some states. They have waiting periods. So if or when USCIS is notified

that the joint is going to be switched to a waiver (either because you decided to withdraw or he opts for it) they will RFE you for the decree. If you fail to present it the petition will be denied by USCIS and he will have to go to immigration court to present the decree when he has it. Some people try to play with the timing so that when they notify USCIS they will have their decree or soon have it to avoid this. However you have to be careful that the petition is not approved w/o interview with out USCIS being notified of the change in marital situation. 

 

So you need to decide if you want to remain in the joint petition or not. If you do, notify them of the change and be prepared to attend a joint interview. (He also has to agree to this path). If you do not want to be on the joint petition anymore then you need to decide when to send a letter detailing this because once you do it will trigger an RFE to him asking for the decree. Since the dates on USCIS tracking show they are working on Dec files, you have a bit of time but not that much. Sometimes petitions are approved out of order. 

 

If you can file for divorce and have the decree in a short amount of time then you may be able to time it right on when to notify them so he can avoid going to court. However for some people the timing just doesnt work and going to court is not that big of a deal. It is a hassle and its advisable to use an attny to navigate it. But at no time will he be out of status or unable to work. 

 

I know this is all confusing, but theres just a lot of variables. I cant really go into each and every scenario. So this is just basic info. 

 

[AKSinghSingh79 143]

Hey everyone, I just wanted to give an update on my situation. I filed for divorce in February and made an InfoPass appointment with my local field office with the intent to hand them the letter. In the letter I requested that I be removed from the petition. When I spoke to the IO, he kept insisting that I could not withdraw the petition. I explained to him that it's still pending and he said it didn't matter. So that was a wasted trip. I still mailed the letter to VSC with an attachment of my dissolution of marriage form.

 

No response yet but we will see what happens. My divorce court date is not until June which I believe would not be enough time to respond to the RFE. But, fortunately CT allows you to waive the waiting period if you and your spouse reach an agreement. Unfortunately my soon to be ex refuses to settle with me even after I explained to him exactly what could happen if he delays.