Marriage falling apart with I-751 pending (split)

[Saiki 0]

Wow thanks Damara for the thorough explaination and thanks OP for bringing up the topic as I'm in the exact situation. We filed jointly in July 2016 at CSC and the application is still pending. Our marriage is falling apart because of many reasons, one of which being me not being able to bear a child as I have a disease that would put me at great risks if I'm pregnant. My doctor advised that  we get my disease under control first and think of having kids later. I've been going to get treatment in the last three years in hope of that. Recently my husband has become very distant and he also showed me that he really wanted to have kids. I'm sad but I can't do anything to make him stay with me (and I also don't want to keep someone who doesn't want to stay with me in my most difficult time). He brought up a divorce last week, in a cold attitude...

 

Damara, if we file a divorce now and I notify the USCIS about it, and if it turns to the last scenario where they deny me because I can't produce a divorce decree in time- will I still be eligible to work legally in the US while waiting to see the immigrant judge? It's important to me because I need my health insurance from my employer to cover my medicine which is extremely expensive. I also don't have any relatives here in the U.S to rely on, so I'll have to stand on my own and that's why being able to work legally is very important to me.

 

thanks again for sharing your knowledge.

 

 

[Villanelle 4,122]

The answer to the question above is YES. You can still work, travel, etc while you are waiting to present your divorce decree.

 

Most people do not realize that USCIS can not take your GC once its issued. Only an immigration judge can. USCIS refers you to the judge for the judge to cancel it.

 

The GC is simply a piece of plastic they give you to prove your status. If you are issued the two year or the ten year card-  it doesnt matter-It can only be taken away by a Judge, or surrendered by you. You still have status even if you dont have the card in your possession, or the card is expired. However the 2 yr card has a special provision which the 10yr does not. It "expires"- meaning if if you fail to file for ROC on time they can/will consider that failure your way of telling them you are surrendering the card. 

 

Once you file (on time) and it doesnt matter what type of petition it was (joint, divorce, abuse) - once you file you are telling them you want the card and are not exercising the option of failing to respond. Does that make sense? 

 

So for people that submit a joint and then switch to a waiver option, or even those who are in a joint but having difficulty getting approved- the same thing happens. USCIS will deny them and send them to immigration court. You are still a  permanent resident (PR) with all the benefits that comes with it. You will remain one until a Judge says you are not one anymore. So you go to court as a PR. Court can go on for months. All the while you are still a PR. The judge will give you time to get your decree and when you present it- case is closed and you are approved. There was never any impact to your legal status. 

 

[Saiki 0]

Thank you for your reply, Damara. I was worried because I looked up denial letters and saw that they always included something along the line of "your resident status is terminated and you are no longer authorized to work in the US etc."

[Villanelle 4,122]

Every case is going to be different. Small differences can make a big impact on what happens.

 

The 751 can be denied for a variety of reasons. It can be not showing bonafide proof (joint or waiver), it can be because its suspected of fraud (also joint and waiver) or it could be because you dont have the decree to qualify for a waiver.

 

In some cases you need to refile another 751 after the denial. I am not a lawyer and I dont know the exact specifics of your case/evidence or what the potential denial letter will state. If you end up getting a denial letter you need to speak to an attny to see if filing another petition is needed. I believe the filing of that second petition is what keeps you in status technically.

 

An immigration judge can not adjudicate a 751. They can only review the denial and "over ride it". Its very technical legal procedures and like I said, I am not an attny and do not have expertise in court matters. 

 

In your case you would receive a denial letter that includes NTA (notice to appear) wording.  As soon as you get the notice contact an attny for assistance. 

 

Im re-reading my post above and Im sorry I cant edit it because its not that clear! The two-year card has special provisions. One is that if you fail to file it- you lose your status. Another is if it is denied you lose you status. Thats why you often need to file a second 751- so you have one active and dont lose status. You can file more then one 751. I know that sounds strange but its a strange mess of legal procedures. An attny can guide you and keep you on the right path. 

 

I always hope that people in this situation have time on their side and are able to avoid immigration court, as its expensive and time consuming as well as stressful. For those that simply can not avoid it- there are ways to ensure your status is protected throughout the proceedings and you come out approved at the end but you need the help of an attny. On VJ court matters are never discussed as they are not really DIY. There are legal clinics and low cost immigration attny services for people that find themselves getting a NTA/denial. 

 

If you find yourself getting an RFE for the decree and you KNOW you wont have in time to mail back- consult an attny right then. Be proactive. Dont wait for the NTA-denial and then seek help.

[Saiki 0]

Thanks for your help, Damara!