i 751 filled jointly, currently separated

[Marloon 3]

Hi guys, i have been a silent reader of VJ for a while and its been very helpful, but here is a question i wasnt be able to find an anwer. Or better say i found different answears where one is totally oposite from another.

A good friend of mine filled jointly i751 petition to remove condition on residency with his US wife at the end of November   2016. They are a few days away from 1 year anniversary since filing

and during this whole year a lot of changes  has happened: they dedided to finish relatipnships and moved out from common appartent just recently.

They filled joint petition to California cervice center, so based on current backlog, not expecting to hear back anything  in a next 3-4-5-6? months. 

 

Now, i read VERY conflicted opinins on following questions and hope for a clarification. Based on previous threads on this subject, i came to conclusion here is 2options: 

 

1) Leave it as it is, as one year ago at the moment of filling they were together and filled lawfully AND still married until this day. However i read here that a couple MUST BE in ongoing marriage and living together as a married couple AT THE MOMENT OF ADJUDICATION and not at the moment of filling and if they fail to disclose that relationships ended then it would be seen as misrepresentation? Even though they still married?

 

 

2) File for divorce, send them a letter with explanation that divorce has been field to avoid the petition getting adjusted without information that they are  separated, but then im afraid it will be automatically denied as it looses the ground for a joint filling

Some people (and lawyers) say  its possible to convert petition from joint to divorce waiver by sending such letter requesting to change a filing status, other people ( and other lawyers) say they need to withdraw joiny petotion and file a waiver ( and wait 2 more years for that to get adjusted) 

So, CAN FILING STATUS BE CHANGED FROM JOINT TO WAIVER without withdrawal joint petition as it may lead to termination of residency and he wont be able to handle financially a legal representative in immigration court? By the way, the spouse is NOT pushing for a divorce and willing to help-  to attend interview if needed, but based on the evidence they submitted there is a good chance of petition being approved without one. 

 

What happen if petition gets approved while divorce is still pending? 

 

 

whats the steps right now? 

 

 

 

 

 

 

[nightingalejules 678]

In theory, what should happen is that your friend should file for divorce, change the petition to a divorce waiver and submit the final divorce decree. 

 

I'm not a lawyer, and I'm still happily married to my husband, so take this advice for what it's worth.

 

Given how long things are taking, and since (as far as USCIS and the law are concerned) they are still married, and since there is a reasonable likelihood that this petition will be approved without an interview, if I were in this situation I would let the application proceed as is. The issue here, legally, is that there is no clear status for people who are married but separated. The only time the petition becomes eligible for a "divorce waiver" is in the case of an actual divorce.

 

If USCIS requires an interview, your friend still potentially has two options:

1. If the USC spouse is still on good enough terms with your friend that they would be willing to attend the interview, that is still possible. They wouldn't have to lie - they could just state that while they are separated, they are still legally married, and the marriage was real, it just doesn't seem to be working out. The interviewer would then have the discretion to either approve the removal of conditions or require that your friend change their filing to a divorce waiver, and then the application would be pending until the final divorce decree was provided.
2. If they are not on good terms, your friend would show up to the interview without the spouse, and at that time would be able to switch to a divorce waiver. Again, the application could not be finalized until the final divorce decree was provided.

Because things are so backed up, and files must literally be piled in every corner, I would be extremely loathe to try to change anything about the petition until someone had actually laid hands on it. This is why I wouldn't change anything until and unless I were called for an interview. 

 

 

 

 

[Marloon 3]

5 minutes ago, nightingalejules said:

In theory, what should happen is that your friend should file for divorce, change the petition to a divorce waiver and submit the final divorce decree. 

 

I'm not a lawyer, and I'm still happily married to my husband, so take this advice for what it's worth.

 

Given how long things are taking, and since (as far as USCIS and the law are concerned) they are still married, and since there is a reasonable likelihood that this petition will be approved without an interview, if I were in this situation I would let the application proceed as is. The issue here, legally, is that there is no clear status for people who are married but separated. The only time the petition becomes eligible for a "divorce waiver" is in the case of an actual divorce.

 

If USCIS requires an interview, your friend still potentially has two options:

1. If the USC spouse is still on good enough terms with your friend that they would be willing to attend the interview, that is still possible. They wouldn't have to lie - they could just state that while they are separated, they are still legally married, and the marriage was real, it just doesn't seem to be working out. The interviewer would then have the discretion to either approve the removal of conditions or require that your friend change their filing to a divorce waiver, and then the application would be pending until the final divorce decree was provided.
2. If they are not on good terms, your friend would show up to the interview without the spouse, and at that time would be able to switch to a divorce waiver. Again, the application could not be finalized until the final divorce decree was provided.

Because things are so backed up, and files must literally be piled in every corner, I would be extremely loathe to try to change anything about the petition until someone had actually laid hands on it. This is why I wouldn't change anything until and unless I were called for an interview. 

 

 

 

 

Wow,  i really appreciate your time and thoughts you put in your response, thank you! I wish you the best in your journey. 

 

But this question seems to be tricky to me - if i 751 get approved without interview, however the couple is not together anymore yet still married, such approval would be considered totally lawful and legal without notifying USICS that realationships as husband and wife ended? Or as long as approval happen while they still legally married, it does not matter that they moved out from each over and decided that this marrige is not makimg them happy?

[mindthegap 2,590]

Yes, you can switch a previously joint filed petition to a waiver without refiling a new I-751.

You can also still continue as a jointly filed petition even if you are separated or divorced, assuming of course that the USC is willing to cooperate and attend any interview.

 

What being divorced gives the alien, is the option of filing a waiver request, which removes the USC from the process.

However,  should an interview be scheduled and the alien attends without the USC spouse, they then have to make the choice of switching to a waiver or being denied.

Also note that with a divorce waiver request, the I-751 cannot be approved without a final divorce decree.

 

This letter may be interesting reading too https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/i-751_Filed_ Prior_Termination_3apr09.pdf

 

 

However, I (and I am sure @charmander will provide the link, given he is a veritable dewey decimal system) do know of one case where someone who had filed the I-751 jointly, and was approved without interview - but between filing and approval had separated and divorced but not told USCIS, - was then subsequently denied their N-400 citizenship application for not declaring the divorce during the I-751 process.

 

A simple letter informing USCIS that the parties have separated, but are keeping the current I-751 as a joint filing, would suffice to cover your back in this regard.

 

 

 

[nightingalejules 678]

6 hours ago, mindthegap said:

 

 

A simple letter informing USCIS that the parties have separated, but are keeping the current I-751 as a joint filing, would suffice to cover your back in this regard.

 

 

 

@Marloon - this seems like the answer! 

[wololo 28]

Do NOT follow the advice here given about continue the process as is, if you leave your marital home you have to inform USCIS immediately, then they will request from your the divorce decree once you get it and it's final. Remember that living together (aka not separated) is a requirement to remove conditions with a jointly filing.

 

Remember that lying to USCIS can be considered visa fraud, and going to an interview when the two of you are not living together and not informing USCIS of that situation, can be considered fraud.

 

If you start divorce proceedings, inform them immediately.

[nightingalejules 678]

17 minutes ago, ElDuderino said:

Do NOT follow the advice here given about continue the process as is, if you leave your marital home you have to inform USCIS immediately, then they will request from your the divorce decree once you get it and it's final. Remember that living together (aka not separated) is a requirement to remove conditions with a jointly filing.

 

Remember that lying to USCIS can be considered visa fraud, and going to an interview when the two of you are not living together and not informing USCIS of that situation, can be considered fraud.

 

If you start divorce proceedings, inform them immediately.

None of our advice has been to lie. None of these things are mutually exclusive. OP has not begun divorce proceedings. Presumably, his friend has reported the change of address, as required by law. (if not, yes, OP, your friend still has to do that!)  But if they're not divorced, they are still, in the eyes of USCIS, married. 

No one suggested lying to USCIS at an interview. Quite the opposite. I said:

13 hours ago, nightingalejules said:

If the USC spouse is still on good enough terms with your friend that they would be willing to attend the interview, that is still possible. They wouldn't have to lie - they could just state that while they are separated, they are still legally married, and the marriage was real, it just doesn't seem to be working out. The interviewer would then have the discretion to either approve the removal of conditions or require that your friend change their filing to a divorce waiver, and then the application would be pending until the final divorce decree was provided.

Obviously, do not lie to USCIS. But the rules for a separation (as opposed to a divorce) are unclear, and that's what we're dealing with here.

[mindthegap 2,590]

22 minutes ago, ElDuderino said:

Remember that living together (aka not separated) is a requirement to remove conditions with a jointly filing.

 

This is not correct.

[geowrian 22,337]

21 minutes ago, ElDuderino said:

Do NOT follow the advice here given about continue the process as is, if you leave your marital home you have to inform USCIS immediately, then they will request from your the divorce decree once you get it and it's final. Remember that living together (aka not separated) is a requirement to remove conditions with a jointly filing.

There's no such requirement to inform USCIS when you start a divorce, finish a divorce, leave your marital home, etc. This information does need to be honestly relayed to them when applying for a benefit and upon request (such as when you file the ROC petition, asked in an interview, etc.).

There's no requirement to live together in order to remove conditions. Living together is something they look at as evidence in determining if the marriage was entered into in good faith, but many individuals have successfully gone through the process otherwise (especially those with spouses who are working abroad, in the military, etc.). It's very good evidence, but not a requirement.

 

As for how wise it is to continue ROC while not living together anymore, that's a very different issue.  I personally wouldn't do it...good relations can break down at any time and I wouldn't put my future in the hands of somebody who I was no longer with (even if we are still on good terms). And if you aren't upfront about your current situation and it sounds like you are misleading the IO, you're going to have a bad time...

 

21 minutes ago, ElDuderino said:

Remember that lying to USCIS can be considered visa fraud, and going to an interview when the two of you are not living together and not informing USCIS of that situation, can be considered fraud.

immigration fraud* (there's no visa involved for ROC).

Interviewing together while no longer living together is permitted and has been done by many others. You just need to be honest at all times, and should tell them about the situation so proper expectations are set. Remember that ROC is to determine if the marriage was entered into in good faith and not solely for immigration benefits, not that the couple is still in a loving relationship.

[Marloon 3]

Well i hope you guys see how terribly confusing this subject is. Please bare with me as im trying to sort things out and that might be helpful for others who is in similar situation given that ROC now takes 1.5 years and a lot of relationships might be over during that period of time. 

 

15 hours ago, mindthegap said:

Yes, you can switch a previously joint filed petition to a waiver without refiling a new I-751.

You can also still continue as a jointly filed petition even if you are separated or divorced, assuming of course that the USC is willing to cooperate and attend any interview.

Also note that with a divorce waiver request, the I-751 cannot be approved without a final divorce decree.

 

Firt of all, thank you for your time. Ive seen your other posts in VJ and you seems very good navigated through this journey. So, 

If he would like to swtch to divorce waiver, he will need to file for divorce yesterday - hoping that the final decree will come before the time of approval/rfe of petition. If the USICS was not at the picture, they would not file for divorce  yesterday (metaphorically speaking)

- as it takes time to cope with emotoins, etc. So the qestion is, should they initiate divorce asap to be able to switch for waiver petition without risking to be asked for a divorce decree and if its not there yet  ( the minimum time at our state is 4 months for a final decree) then risking to be placed in removal proceedings and wait for immigration court to present such decree ( Which would cost tons of money for attorney for who my friend is not capable of paying ) OR remain married, but separated if its not reqired to inform USICS about relationships drama happened a year after joint filing as they still remain married? That is fraud or not fraud? Very confused. i mean, A YEAR PASSED BY, not likey lied about living happily together at the moment of filing a joint petotion. 

 

15 hours ago, mindthegap said:

 

A simple letter informing USCIS that the parties have separated, but are keeping the current I-751 as a joint filing, would suffice to cover your back in this regard.

 

And this is an interesting advice. However i think it should be done only if REQURED BY USICS AND TOTALLY NECESSARY - my simple logic that its might comlicate the case, increase proceeding time ( and its already been a year ) and no need to explain you how one might be scared to complicate things since its already is pretty messy process. So unless thats a USICS rule, something that must be done by law, volunteering this information might simply makes thing harder? By any means im not trying to find out how to hide something or lie, its actually the opposite - im trying to figure out how to do things lawfully without putting yourself in harder situation than its already is. 

 

9 hours ago, ElDuderino said:

Do NOT follow the advice here given about continue the process as is, if you leave your marital home you have to inform USCIS immediately, then they will request from your the divorce decree once you get it and it's final. Remember that living together (aka not separated) is a requirement to remove conditions with a jointly filing.

 

Remember that lying to USCIS can be considered visa fraud, and going to an interview when the two of you are not living together and not informing USCIS of that situation, can be considered fraud.

 

If you start divorce proceedings, inform them immediately.

 

They DID NOT started divorce proceeding. They ended relationships and moved out from each over. That happened long after they filed a joint 751.

Please, can you share the policy or article where you learned that they MUST inform USICS in this particular situation, i would really appreciate it. They did not lie on joint petition, they never communicated with USICS since biometrics, and the chances are petition might get approved without interview. Would that be wrong considering divorce has never been filed? 

7 hours ago, geowrian said:

There's no such requirement to inform USCIS when you start a divorce, finish a divorce, leave your marital home, etc. This information does need to be honestly relayed to them when applying for a benefit and upon request (such as when you file the ROC petition, asked in an interview, etc.).

There's no requirement to live together in order to remove conditions. Living together is something they look at as evidence in determining if the marriage was entered into in good faith, but many individuals have successfully gone through the process otherwise (especially those with spouses who are working abroad, in the military, etc.). It's very good evidence, but not a requirement.

 

As for how wise it is to continue ROC while not living together anymore, that's a very different issue.  I personally wouldn't do it...good relations can break down at any time and I wouldn't put my future in the hands of somebody who I was no longer with (even if we are still on good terms). And if you aren't upfront about your current situation and it sounds like you are misleading the IO, you're going to have a bad time...

 

immigration fraud* (there's no visa involved for ROC).

Interviewing together while no longer living together is permitted and has been done by many others. You just need to be honest at all times, and should tell them about the situation so proper expectations are set. Remember that ROC is to determine if the marriage was entered into in good faith and not solely for immigration benefits, not that the couple is still in a loving relationship.

This is very helpful, thank you! How do you think, would this scenario be totally legit and lawful:

 Leave joint petition as it is, then in case:

1) approval with no rfe would be lawful since they still legally married and no need to submit a letter describing the break up ( not divorce) 

2)RFE - submit new evidences from that past year since joint filing ( a lease, FPL, Bank statements) AND cover letter explaining the couple got separated but would like to get conditions removed based on joint petition as they still married and who knows what can happen in future between them) 

? 

 

 

 

 

Edited November 29, 2017 by Marloon

[Marloon 3]

AND FOR EVERYONE whos reading this thread, i understand that  complicated matters require a lawyer assistance, HOWEVER i have experinced in the past situations where the lawyers only looking to give you an answer that would benefit them financially and scare you if needed. Not everyone,not always, but that does happen. So probably lawyer would say something like - file for divorce, withdraw old petition anf file a new one with his help, but that would cost a lot of fees, and most importantly stress. And im just trying to help a friend whos already breaking down under the pressure of current events, and find a lawful and the most stress free solition possible with your help. 

So if anyone has a knowledge to add on that matter, i ask you to take some minutes of your day too share if, if possible. 

 

Apprecite all your help guys.

Edited November 29, 2017 by Marloon

[charmander 692]

On 11/28/2017 at 9:05 AM, mindthegap said:

However, I (and I am sure @charmander will provide the link, given he is a veritable dewey decimal system) do know of one case where someone who had filed the I-751 jointly, and was approved without interview - but between filing and approval had separated and divorced but not told USCIS, - was then subsequently denied their N-400 citizenship application for not declaring the divorce during the I-751 process.

 

There you go sir....

 

[Scazy 78]

1 hour ago, charmander said:

There you go sir....

 

Right, but they NOT DIVORCED, and did NOT filed for divorce. So joint petition still meets it's basis as they legally married at this point. OP is unsure what action to take/or do not take any action because they broke up, yet still in marriage. 

[Scazy 78]

23 hours ago, ElDuderino said:

Do NOT follow the advice here given about continue the process as is, if you leave your marital home you have to inform USCIS immediately, then they will request from your the divorce decree once you get it and it's final. Remember that living together (aka not separated) is a requirement to remove conditions with a jointly filing.

 

You saying they need to send a letter to USICS saying they recently broke up ( and that's a requirement?) then USICS will ask for divorce decree( yet they haven't filed for it and might not want to file as of right now) because they can't  be legally approved due to the fact they not together anymore (and that's a requirement to stay together long after joint filing took a place? ) 

I'm not sure how it's right? 

As OP said, we wil definitely see similar threads more and more as ROC now takes so long. Heck, someone I know actually experience a similar situation, but I'm not sure what advice to give since I can't prove it with official regulations...

[Villanelle 4,122]

This question comes up a lot. The memo mindthegap linked is really the only "official source" you are going to find on the topic. Bottom line is there is no requirement to notify USCIS when you have filed a joint petition and then separate. However this does not mean that you shouldnt notify them. As posted previously USCIS can consider your withholding of the info a misrep and it will cause you issues in the future. 

 

If both parties are willing, the joint petition can remain a joint petition. Its the applicants choice if they want to switch to a waiver (and provide a divorce decree) or remain on the joint petition and be evaluated on its merits. Again this is all in the memo. Please read through the memo and post back any additional questions.