i 751 filled jointly, currently separated

[Marloon 3]

2 hours ago, Damara said:

This question comes up a lot. The memo mindthegap linked is really the only "official source" you are going to find on the topic.

Thank you! I guess its a very shady area my frieds at, because even though they break up ( and i would like to use this word because its more accurate than separation)- they have not filed any legal separation documents or divorce.

This article stricrly talk about LEGAL separation ( which is not the same as a break up and moving out) or ongoing divorce. So i cant say its can really be applied to this particular situation. 

From online: Legal separation is legal process a married couple may formalize a de facto separation while remaining legally married. 

2 hours ago, Damara said:

 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. 

 

This is what bothers me the most. They would look at the documents submitted a year ago - and back then trey were together hence i dont see how its a misrep if there was none communication with USICS since then, and its not reqired to send a letter to them to inform of relationships changes. Im VERY VERY concerned that such letter might complicate things and, even worse, will place petition at the bottom shelf.This is very stressful by itself, so volounteering information that is not requred makes me worry. 

Another thing would be if lets say USICS send RFE and they withhold current situation when replying pretending its all love and flowers - then i undestand that doing so is misperresentation. But at this point? 

Do you see my logic? Please correct if im wrong. 

2 hours ago, Damara said:

 

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. 

Yes both parties are willing to remain a joint petition AND show up for the interview if needed. But then its a question if on interview they explain that relationships came to its end, yet they still married and maybe there is a chance to reunion so they not rishing a divorce - can such petition be even approved? 

Edited November 29, 2017 by Marloon

[Villanelle 4,122]

35 minutes ago, Marloon said:

Thank you! I guess its a very shady area my frieds at, because even though they break up ( and i would like to use this word because its more accurate than separation)- they have not filed any legal separation documents or divorce.

This article stricrly talk about LEGAL separation ( which is not the same as a break up and moving out) or ongoing divorce. So i cant say its can really be applied to this particular situation. 

From online: Legal separation is legal process a married couple may formalize a de facto separation while remaining legally married. 

This is what bothers me the most. They would look at the documents submitted a year ago - and back then trey were together hence i dont see how its a misrep if there was none communication with USICS since then, and its not reqired to send a letter to them to inform of relationships changes. Im VERY VERY concerned that such letter might complicate things and, even worse, will place petition at the bottom shelf.This is very stressful by itself, so volounteering information that is not requred makes me worry. 

Another thing would be if lets say USICS send RFE and they withhold current situation when replying pretending its all love and flowers - then i undestand that doing so is misperresentation. But at this point? 

Do you see my logic? Please correct if im wrong. 

Yes both parties are willing to remain a joint petition AND show up for the interview if needed. But then its a question if on interview they explain that relationships came to its end, yet they still married and maybe there is a chance to reunion so they not rishing a divorce - can such petition be even approved? 

The memo talks about divorce or legal separation documents because the USCIS only has two choices for marital status. You are either legally married or you are not (divorced). There is no status for "separated". Youre either married legally or you are not. Its that black and white.

 

It is possible to be separated with out having a formal separation agreement. If you have one you have one, if you dont you dont. Again USCIS doesnt acknowledge this as a marital status so it doesnt matter if you have a separation agreement or not. 

 

I understand your point about not sending additional documents so therefore there should be no misrep but thats not how it works. USCIS will ASSUME everything you submitted a year ago is still accurate (and there has been no changes) unless you tell them otherwise. So when they finally get around to adjudicating it they will assume it is all still correct and valid unless you tell them otherwise. This is where the misrep will come into play. By saying nothing about the current situation you are in fact misrepping the current situation by withholding the current facts.

 

Petitions dont get placed on the bottom shelf. They sit in line to wait to be worked on. When the Officer gets to it they review the info thats currently available. This should include a statement from the couple stating they are separated but want to remain in the joint petition. The officer may send an RFE asking if they are sure they want to remain in the joint petition, or they may not since theres a letter stating they want to. Yes, this will add a few months to the process (if a RFE is issued and a response sent back) BUT you should not withhold the info to avoid such a delay. It will cause future problems/. So it is what it is. If the letter advising them slows the process somewhat then it does. Theres nothing you can do about that. There is also a greater chance they will get an interview after telling them they are separated. Again theres nothing you can do about it. But the applications are generally worked on in the order they are received. You dont go back to the end of the line when you get an RFE or are selected for an interview. 

 

I really hope they do the right thing and send a letter explaining the current situation. If they choose not to, well its their choice but you all have been advised about what can happen if you withhold the info.

 

Best of luck

 

 

Edited November 29, 2017 by Damara

[Scazy 78]

2 hours ago, Damara said:

 

 

I understand your point about not sending additional documents so therefore there should be no misrep but thats not how it works. USCIS will ASSUME everything you submitted a year ago is still accurate (and there has been no changes) unless you tell them otherwise. So when they finally get around to adjudicating it they will assume it is all still correct and valid unless you tell them otherwise. This is where the misrep will come into play. By saying nothing about the current situation you are in fact misrepping the current situation by withholding the current facts.

 

Hi! Do you think you must update USICS with all the changes happened during a year or more since roc filing which could be a lot - insurance, bank account, place of living can change (new lease) but I don't think people would just send updated information without being asked to do so? That wouldn't be a misrepresentation if petition gets approved on old information? Pretty much everything could change in such a long time.... 

 

Also What trobles in the future exactly you talking about If jointly filed petition gets approved the way It is now since the OP is still married and have not started divorce? At the thread that has been mentioned here earlier another VJ member got denied naturalization based on fact that he filed for divorce during joint Roc and by doing so he jeopardized the basis for joint petition (to be married) But current OP have not done such a thing. So which trobles he may face in future? 

Its indeed very common issue lately as I know a couple who's going through exactly the same issue. 

[Villanelle 4,122]

No, it is not necessary to update USCIS with additional current proof of the bonafides of the relationship. The whole point of what Im trying to explain is yes, things can change. You should notify USCIS if the main material fact (a pending divorce or separation {legal or just physical}) occurs. Getting a new bank account or having a child doesnt change that particular fact. Does that make sense? When you submit a joint ROC you are signing that you are a real couple that is together. When you separate or file for divorce you are no longer a couple that is together. Together in this sense means having a relationship not just physically residing in the same location. Thats what you sign acknowledging and if it changes you should notify them.

 

And technically the "old facts" as you referred to them dont change so to speak. If you had a joint account and its now closed you still HAD it at the point of submission. So thats not a misrep. Signing that you are together and then not being together is a fact they want to know about when adjudicating. 

 

The thread linked was just one example of how someone had an issue by not notifying them of the separation. There are other examples of this happening. Some are on VJ some are not. Technically you can be approved with a joint filing and be separated. There are examples of this as well on VJ and other sites. Being separated is not a reason they can deny you. It even states so in the memo. But they have to have ALL the facts to make a decision.

 

So the trouble can come usually when the person naturalizes or seeks another type of benefit. The Officer when reviewing the current case will look at the past ROC and see it was approved during a divorce or separation and if its not noted that that was known about in the ROC documents they can reopen the ROC and revoke the approval. Its rare but it has happened. They can also deny the new application for naturalization or family visa being sought based on you "misrepping" on ROC. Hopefully one day USCIS will make a policy stating you must notify them as some people (and attnys) feel that until they do they have no obligation to tell USCIS about whats going on. In my opinion this is dangerous. The whole point of VJ is to provide guidance and advice on how to make the process as smooth as possible. So the general advice on VJ is to save yourself potential heartache in the future and advise them of any pending divorce or separation that occurs after a joint ROC is filed in a timely fashion.

[Marloon 3]

Thank you for detailed post. 

 

2 hours ago, Damara said:

 

 

So the trouble can come usually when the person naturalizes or seeks another type of benefit. The Officer when reviewing the current case will look at the past ROC and see it was approved during a divorce or separation and if its not noted that that was known about in the ROC documents they can reopen the ROC and revoke the approval. Its rare but it has happened. They can also deny the new application for naturalization or family visa being sought based on you "misrepping" on ROC. 

I just wonder how would the Officer know that couple ended relationships  as a couple a year after sending a full package of bona fides and got approved, if they have never filed any legal action to terminate a marrige AND there is no policy with a requirement to do so?

I really want to know the answer on this question as i totally dont see how realistic that is....

 After searching here and just online i was only able to find situations where trouble accured due to legal actions took place ( separation, divorce) during joint ROC which indeed conflicted with a joint petition basis.

Sorry if im being stubborn, just want to fully see it from all sides. 

[Marloon 3]

14 hours ago, charmander said:

There you go sir....

 

Appreciate the time you took to find it! And i would never advise my friend to withhold information about divorce while on joint ROC as that had happen is this thread, thats very obvious for people who actually take time to do research themselves and ask fror help at VJ. But the qiestion im asking here unfortunately is not that obvious after all the research i have done  :/ 

Edited November 30, 2017 by Marloon

[Marloon 3]

~Sorry posted a double post and dont know how to remove this~

Edited November 30, 2017 by Marloon

[Villanelle 4,122]

12 hours ago, Marloon said:

Thank you for detailed post. 

 

I just wonder how would the Officer know that couple ended relationships  as a couple a year after sending a full package of bona fides and got approved, if they have never filed any legal action to terminate a marrige AND there is no policy with a requirement to do so?

I really want to know the answer on this question as i totally dont see how realistic that is....

 After searching here and just online i was only able to find situations where trouble accured due to legal actions took place ( separation, divorce) during joint ROC which indeed conflicted with a joint petition basis.

Sorry if im being stubborn, just want to fully see it from all sides. 

Im guessing youve never been divorced?

 

On divorce papers it states the date you separated (even if no legal separation papers were filed),the date you filed for divorce as well as the date the divorce is approved and finalized by the judge. USCIS requires divorce papers for just about every petition.

[Villanelle 4,122]

Of course if the couple simply separates and then gets back together and no divorce is ever filed, then yes it is impossible for USCIS to know this. But an omission of a fact is still wrong. Just because they wont know doesnt mean you shouldnt tell them so they can have all the info when deciding to approve you. 

[Marloon 3]

On 30.11.2017 at 8:50 PM, Damara said:

Of course if the couple simply separates and then gets back together and no divorce is ever filed, then yes it is impossible for USCIS to know this. But an omission of a fact is still wrong. Just because they wont know doesnt mean you shouldnt tell them so they can have all the info when deciding to approve you. 

Hi Damara. 

After talking to my frieds and discussing information you provided, they now considering to file for divorce now ( which would take about a month) , recieve a 

final divorce decree and only then send to USICS a final divorce decree with a request to change petition to waiver.  Based on a timeline here CSC is only going through the cases filed in August 2016 and they still have about 5 month wait as they filed at the end of November. 

They totally refuse to send a letter now explaining they about to start a divorce process, then in about a month another one with a divorce decree as they already stressedd to the maximum because of the idea to send "Updates" to the case that have already been sitting in line for a year. Plus, and please advice on this, if they simply just mail the divorce decree that would eliminate the RFE with reqest to send a divorce decree since they would already have it in file. 

Do you agree? 

And, very important question - do you think that when they add divorce decree to A file and find the bona fides that they mailed a year ago satisfactory - then the petition would be treated just like a regular joint petition TIMNING WISE? Or its a good chances such update and switch of petition basis would most likey delay it big time, even if they avoid gettinf RFE just for a final divorce decree? 

 

 

[mindthegap 2,610]

16 minutes ago, Marloon said:

 Plus, and please advice on this, if they simply just mail the divorce decree that would eliminate the RFE with reqest to send a divorce decree since they would already have it in file. 

Do you agree? 

No.

They may get an RFE for something else,  the officer may not realise it is a final decree, and send an RFE for something that is already there.

There are a hundred things you are trying to second guess, that not even USCIS is capable of giving a precise answer about, let alone anyone on here. Stop trying to control it. I will add that to me, it also comes across to me as extremely suspicious, like 'what exactly do we have to do to avoid X, or to make this happen' suspicious. 

 

18 minutes ago, Marloon said:

And, very important question - do you think that when they add divorce decree to A file and find the bona fides that they mailed a year ago satisfactory - then the petition would be treated just like a regular joint petition TIMNING WISE? Or its a good chances such update and switch of petition basis would most likey delay it big time, even if they avoid gettinf RFE just for a final divorce decree? 

 

Sending additional evidence or having the file pulled does not somehow put it to the back of the line.

However, it is adjudicated when it adjudicated - nothing you can do will change that, and petitions with a divorce waiver request are still adjudicated on the evidence provided, just with the joint filing aspect removed.

 

You.....sorry, I mean your 'friend' .... should file for divorce, send the decree with an explanation letter, and then let whatever happens, happen.

[Villanelle 4,122]

I agree with the above. You seem to be focused on the 'how long will this take' aspect above everything else. I can understand its been a long wait, but theres nothing you can do about that. 

 

If or when you send a letter stating you are now separated, it doesnt move the case to the back of the line.  The letter will simply be put in the file and WHEN the Officer gets to your case they will see it.  So you can send the letter now and it will sit in the file for as long as it takes for your case to be looked at. Maybe enough time has passed that you will end up sending the divorce decree as well before they get to it, maybe not. 

 

The only thing I can suggest is what I have already told you. It is recommended to send a letter in a timely fashion. Interpret it as you will. Timely can mean with in days or within months. Just be advised that if you wait, and they get to your case before you take action (mail the letter or decree) you will most likely have problems in the future.  There have been people who have waited for whatever reason and then are approved without interview before they notified USCIS. If that is the case- then the only advice is to send them a letter immediately after approval explaining what happened and apologize for not notifying them and wait to see what happens. They can reopen it or they can leave it alone. But why cause issues for yourself? Hindsight is 20/20 but thats not the case here. You would be deliberately rolling the dice and theres no reason to. It doesnt change the resident since date when applying for citizenship in 5 years. 

[Marloon 3]

21 hours ago, mindthegap said:

No.

They may get an RFE for something else,  the officer may not realise it is a final decree, and send an RFE for something that is already there.

There are a hundred things you are trying to second guess, that not even USCIS is capable of giving a precise answer about, let alone anyone on here. Stop trying to control it. I will add that to me, it also comes across to me as extremely suspicious, like 'what exactly do we have to do to avoid X, or to make this happen' suspicious. 

 

What suspicious about trying to avoid delay IF that is possible? What suspicious about being exhausted by the amount of time it now takes and have anxiety everytime one got pulled to seconday just because this proccess takes so long and not everyone too familiar with a stamp? Exlaining this EVERY single time at check in counter when travelling? Yes i came to this forum to figure out "What exactly to do to avoid X or Y or Z " or whatever it takes up to fillers not to delay this process more than it already is! Based on your timeline, im not sure why this cautious is suspicious to you as you probably experience yourself how draining this process can be. Thank you for your advice anyways. 

 

1 hour ago, Damara said:

I agree with the above. You seem to be focused on the 'how long will this take' aspect above everything else. I can understand its been a long wait, but theres nothing you can do about that. 

 

If or when you send a letter stating you are now separated, it doesnt move the case to the back of the line.  The letter will simply be put in the file and WHEN the Officer gets to your case they will see it.  So you can send the letter now and it will sit in the file for as long as it takes for your case to be looked at. Maybe enough time has passed that you will end up sending the divorce decree as well before they get to it, maybe not. 

 

The only thing I can suggest is what I have already told you. It is recommended to send a letter in a timely fashion. Interpret it as you will. Timely can mean with in days or within months. Just be advised that if you wait, and they get to your case before you take action (mail the letter or decree) you will most likely have problems in the future.  There have been people who have waited for whatever reason and then are approved without interview before they notified USCIS. If that is the case- then the only advice is to send them a letter immediately after approval explaining what happened and apologize for not notifying them and wait to see what happens. They can reopen it or they can leave it alone. But why cause issues for yourself? Hindsight is 20/20 but thats not the case here. You would be deliberately rolling the dice and theres no reason to. It doesnt change the resident since date when applying for citizenship in 5 years. 

Thank you Damara!  Last questions

1) Do you think its reasonable to send a letter/divorce decree WITH additional evidences from the past year that a couple still lived together after filing roc? ( new lease, bills, pictures etc) or no need to do so unless asked through RFE? 

2) lawyer quoted 2k to amed petition from joint to waiver. Honestly this seems like a lot of money to pay simply for your desire to be upfront with USICS that marriage faling apart. From what i learned, the only things that needed to be mailed to Cervice center is 

- Letter explaining situation and asking to switch petiion to waiver ( Should that letter be wrote by USC spouse or petitioner?) 

- Affidavit from US Spouse and petitioner explaining how marriage was entered in a good faith but ended) 

- Possible additional evidences? 

Is that all? Would lawyer be beneficial or not so much? 

 

Thank you 

[Villanelle 4,122]

Generally on the forums when someone repeatedly asks the same questions or is trying to avoid an interview or other delay (or posts for themselves and says its for a friend) its because they have something they are worried about. Something like things they dont want USCIS to know (fraud). Not saying this is the case! Its just seasoned members are wary. Hang around the forums enough and you will see what I mean.

 

Anyway the lawyer fee sounds in line with what I would expect they would charge but personally I dont think an attny is needed. Use one if it makes you feel better about the process but all USCIS forms are designed to be filled out by regular people. No attny is required. Theres nothing extra special about changing to a divorce waiver where an attny would be needed or recommended. 

 

You can take advantage of the fact you are switching to a divorce waiver to sneak in some more evidence but its not required. If the additional evidence is something "new" then include it. If its just more of the same old stuff already submitted then dont. (ex additional current bank statements when they have old statements vs a new account that wasnt included the first time around).

 

The letter should ideally be written by the LPR. If the spouse sends a letter they will send an RFE asking the LPR what they want to do. If the LPR sends it they shouldnt send an RFE but they might just to verify it. Also the memo says for them to send an RFE when made aware of the divorce or separation so they might follow the memo to the letter and send one even though you submitted a letter. Every Officer is different and I dont have a crystal ball to tell you exactly what is going to transpire and when. 

 

So send a letter. Include new evidences if youd like. Either in the change to a waiver letter or in a separate affidavit you can explain how the relationship transpired. Please be advised if you submit anything from the ex spouse or soon to be ex spouse you are opening the door for them to contact said spouse. Sometimes divorce starts smoothly and then goes bad. Many people opt to not send anything from the spouse for that reason. 

[Xandrina 0]

Ugh, maybe somebody from this thread can help me to clarify some stuff with my case. At the beginning of the last year, my husband and I jointly filed i-751. After a couple of months we got separated, USCIS sent a letter asking for RFE. I have responded to that stating that we are no longer together, including all the proof of this marriage being real (I left him due to emotional abuse and many other reasons which I could not handle, although there was no physical abuse), texts and facebook conversations have been sent together with bank statements, tax refunds etc etc. We did file for divorce but it hasn't been finalized yet since he refuses to sign the papers (although at first, he initiated it). Last week USCIS sent me a letter with an interview notice, which says that if i-751 was filed jointly, the spouse has to come with for the interview. I have called USCIS a few times but nobody gave me an exact answer if he has to be present on the interview considering we are no longer together. So, the question is, do I have to bring him with?