Changing I-751 from Joint to Divorce waiver while its in process

[Villanelle 4,122]

Im glad you find my comments helpful!  But just so you know I am not an attny nor do I work for USCIS.  Its good that you spoke to local attnys as you can discuss with them specifics about your case whereas the forums just contain generic info.

 

Anyway, both attnys were correct. Affidavits are considered 'weak' evidence. They can help but you should never have them be the strong point of your case. So yes, a statement from the ex spouse can help you. How much help depends on whats written and your packet overall. It is also true that it does open the door so to speak for USCIS to contact said spouse. This is true for anyone who writes an affidavit. So if theres no statement submitted by you from the ex spouse they can not call/ask them to come in for questioning. If there is an affidavit they can contact the person. However its rare that you hear about them contacting the ex. Also Ive seen cases where the affidavit hurts the petitioner because of conflicting info or answers. 

 

You have to weigh how much help their statement will be and what it adds to your overall packet vs how much harm they can possibly do to you if questioned. Personally I feel if you have a strong enough packet (which it seems like you do based on what youve posted so far) then its not worth the risk of opening them up to being questioned. Ive seen a lot of good situations turn bad fast so Im hesitant to encourage an ex spouses affidavit. However every situation is unique. There are plenty of people who continue to have good relationships after a divorce (and plenty of people that dont). So its up to you to make the decision. Maybe right now things are good between you guys but divorce is emotional. It can bring out the ugly in people. What if you start dating after the divorce? Before she does? She may not be so happy anymore when you are posting pictures of you and some cute young thing on social media. 

 

 

[mindthegap 2,590]

39 minutes ago, Damara said:

So if theres no statement submitted by you from the ex spouse they can not call/ask them to come in for questioning. If there is an affidavit they can contact the person. However its rare that you hear about them contacting the ex. Also Ive seen cases where the affidavit hurts the petitioner because of conflicting info or answers. 

A font of knowledge as usual.

I didn't know that....so that definitely means my ex spouse maliciously contacted USCIS, rather than responding to USCIS reaching out to them.

[Texans_99 24]

I am going through similar issue. I am a sept 2016 filer at CSC. I am in the process of getting divorced and have to amend my I-751 from joint to waiver. My divorce has been filed and I have hired a lawyer to help me see through this. I will strongly advice that you hire a lawyer to help you. 

My lawyer has requested USCIS that my joint petition need to be converted to waiver. I am still waiting to hear from USCIS. That gives me some time as my divorce won't be finalized for another 1.5 months. 

I don't have affidavit from my spouse, but I have Affidavits from other people and STRONG evidence of marriage that was entered in good faith (financial documents, insurance, house documents, trips, photos, e-mails etc). I suggest focus on gathering as much evidence as possible! 

It's funny that 2 months back I was praying that I get approval soon, and now I am praying that they don't approve me before my divorce is finalized so I can submit my divorce decree to them. Otherwise I would need to file a new application with a waiver! And don't want to stand at the back of the line again!!!! 

Edited December 23, 2017 by Texans_99

[Villanelle 4,122]

Did your attny tell you you would start at the end of the line again? That is incorrect. 

 

For your particular situation, youve submitted a request to switch to a waiver but did not include the divorce decree. When USCIS gets to your file to adjudicate it they will send an RFE for the divorce decree if you havent mailed it to them yet. You will have the standard number of days to respond. (84) If you dont have the decree in that time you will be sent to immigration court where yes, an attnys help is recommended. Since you are getting the decree in 1.5 months youll probably be okay and have it to send back with the RFE in time.  When they get it they will continue processing you. You never go back to the beginning of the line so to speak. 

[mindthegap 2,590]

2 hours ago, Texans_99 said:

It's funny that 2 months back I was praying that I get approval soon, and now I am praying that they don't approve me before my divorce is finalized so I can submit my divorce decree to them. Otherwise I would need to file a new application with a waiver! And don't want to stand at the back of the line again!!!! 

This is incorrect.

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

 

 

Edit- I see Damara beat me to it

Edited December 23, 2017 by mindthegap

[Texans_99 24]

3 hours ago, Damara said:

Did your attny tell you you would start at the end of the line again? That is incorrect. 

 

For your particular situation, youve submitted a request to switch to a waiver but did not include the divorce decree. When USCIS gets to your file to adjudicate it they will send an RFE for the divorce decree if you havent mailed it to them yet. You will have the standard number of days to respond. (84) If you dont have the decree in that time you will be sent to immigration court where yes, an attnys help is recommended. Since you are getting the decree in 1.5 months youll probably be okay and have it to send back with the RFE in time.  When they get it they will continue processing you. You never go back to the beginning of the line so to speak. ?

Right, but what happens if the waiver is rejected? And I have to file a new I-751? So according to the new memo, USCIS will have to issue me an RFE regardless. I haven't heard anything as of yet and no RFE has been issued as yet. 

[Villanelle 4,122]

Why do you think the waiver will be rejected? Its an odd statement/question. I suppose they can reject your request to switch to a waiver but Ive never heard of them doing that. You currently have a joint ROC petition and have asked for it to be switched to a waiver. That request should be honored and you will be switched to the waiver. They will then evaluate your waiver petition. If it is deemed good you will be approved. If it is not then you are denied and will go to immigration court. I suppose if they reject your request to switch to a waiver then they will evaluate your joint ROC and deny or approve you on that. The only time you would need to file a new 751 is if you are denied (petition denied)

[Marloon 3]

On 22.12.2017 at 10:50 PM, Damara said:

Im glad you find my comments helpful!  But just so you know I am not an attny nor do I work for USCIS.  Its good that you spoke to local attnys as you can discuss with them specifics about your case whereas the forums just contain generic info.

 

Anyway, both attnys were correct. Affidavits are considered 'weak' evidence. They can help but you should never have them be the strong point of your case. So yes, a statement from the ex spouse can help you. How much help depends on whats written and your packet overall. It is also true that it does open the door so to speak for USCIS to contact said spouse. This is true for anyone who writes an affidavit. So if theres no statement submitted by you from the ex spouse they can not call/ask them to come in for questioning. If there is an affidavit they can contact the person. However its rare that you hear about them contacting the ex. Also Ive seen cases where the affidavit hurts the petitioner because of conflicting info or answers. 

 

You have to weigh how much help their statement will be and what it adds to your overall packet vs how much harm they can possibly do to you if questioned. Personally I feel if you have a strong enough packet (which it seems like you do based on what youve posted so far) then its not worth the risk of opening them up to being questioned. Ive seen a lot of good situations turn bad fast so Im hesitant to encourage an ex spouses affidavit. However every situation is unique. There are plenty of people who continue to have good relationships after a divorce (and plenty of people that dont). So its up to you to make the decision. Maybe right now things are good between you guys but divorce is emotional. It can bring out the ugly in people. What if you start dating after the divorce? Before she does? She may not be so happy anymore when you are posting pictures of you and some cute young thing on social media. 

 

 

Yes, i came to conclusion it is indeed better not to include affidavit from spouse as that would not be the major factor in order to make a decidion to approve the petition, yet might possibly lead to complications, thank you for confirmation! 

 

Update: Divorce application has been signed by both spouses, court should take place in very near future. 

 

On 23.12.2017 at 7:24 PM, Texans_99 said:

I am going through similar issue. I am a sept 2016 filer at CSC. I am in the process of getting divorced and have to amend my I-751 from joint to waiver. My divorce has been filed and I have hired a lawyer to help me see through this. I will strongly advice that you hire a lawyer to help you. 

My lawyer has requested USCIS that my joint petition need to be converted to waiver. I am still waiting to hear from USCIS. That gives me some time as my divorce won't be finalized for another 1.5 months. 

I don't have affidavit from my spouse, but I have Affidavits from other people and STRONG evidence of marriage that was entered in good faith (financial documents, insurance, house documents, trips, photos, e-mails etc). I suggest focus on gathering as much evidence as possible! 

It's funny that 2 months back I was praying that I get approval soon, and now I am praying that they don't approve me before my divorce is finalized so I can submit my divorce decree to them. Otherwise I would need to file a new application with a waiver! And don't want to stand at the back of the line again!!!! 

Sorry you are going through this. After taking time to do extensive research, having this thread on VJ and asking a lawyers opinion i came to conclusion lawyer is not really needed at this point as its pretty simple step just to mail them a letter and divorce decgree. But if lawyer makes you less stressed, its worth to have one. Please come back here to update your case, we are at the same boat. Thank you! 

[Corbs5865 0]

Could you please contact me I'm a Brit in Florida an have a few questions?

 

[Marloon 3]

On 13.01.2018 at 4:03 AM, Corbs5865 said:

Could you please contact me I'm a Brit in Florida an have a few questions?

 

Hi! Not so sure what you mean, which questions? 

[jahgallou 6]

Hey everyone,

 

I just had a general question about the process of going through a divorce while waiting on the 10 year green card. Things did not end up working out with me and my wife and wanted to know of the ramifications pertaining to form i-751. The marriage was entered in good faith after almost 3 years, but there were too many differences and complications that it was hard to salvage the marriage. In addition, I have fallen in love with someone else which complicates everything. I was looking for advice on what the next step is for me, as the petitioner, to do as I have not found any information on this issue. Am I still eligible to receive the green card despite the short comings of my marriage or is it more problematic. I would appreciate any input and help as I am lost right now and cant afford a lawyer to help me out.

 

Thanks,

Jonny Kane 

[Texans_99 24]

On 12/30/2017 at 1:39 PM, Marloon said:

Yes, i came to conclusion it is indeed better not to include affidavit from spouse as that would not be the major factor in order to make a decidion to approve the petition, yet might possibly lead to complications, thank you for confirmation! 

 

Update: Divorce application has been signed by both spouses, court should take place in very near future. 

 

Sorry you are going through this. After taking time to do extensive research, having this thread on VJ and asking a lawyers opinion i came to conclusion lawyer is not really needed at this point as its pretty simple step just to mail them a letter and divorce decgree. But if lawyer makes you less stressed, its worth to have one. Please come back here to update your case, we are at the same boat. Thank you! 

I checked my status today and it changed to "new card being produced". My attorney sent request to amend my joint roc to divorce waiver. She spoke to level 2 officer and they confirmed that the amendment was received. Ideally, I should have got RFE asking for a divorce decree and then after I respond to the RFE, the I-751 should have been approved as a divorce waiver. But, now I am approved without getting RFE so I am assuming they approved my joint petition? So looks like I will have to file a new application again as a waiver because I don't want any problems during N-400? I dread waiting for 1.5 years more!! 

[xillini 71]

On 1/14/2018 at 3:45 PM, jahgallou said:

I just had a general question about the process of going through a divorce while waiting on the 10 year green card. Things did not end up working out with me and my wife and wanted to know of the ramifications pertaining to form i-751. The marriage was entered in good faith after almost 3 years, but there were too many differences and complications that it was hard to salvage the marriage. In addition, I have fallen in love with someone else which complicates everything. I was looking for advice on what the next step is for me, as the petitioner, to do as I have not found any information on this issue. Am I still eligible to receive the green card despite the short comings of my marriage or is it more problematic. I would appreciate any input and help as I am lost right now and cant afford a lawyer to help me out.

 

If it is at-fault by you, petitioner, you won't get I-751 granted because USCIS can't approve based on their policy manual. 

Even if no-fault divorce, you still need to provide ample evidences that marriage was entered in good faith

If it is at-fault by citizen, or in your situation, your wife, it increases a chance to get I-751, but still not guaranteed. Often at-fault divorce by citizen gives a lot positive signal to female petitioner such as VAWA eligibility. 

 

So being all that said, if you fall in love with someone without your wife's acknowledge, I would highly recommend stop doing your affair, unfortunately that is what faces immigrants in this country. Even if your wife's consent is present, both of you agreeing that marriage is not repairable and it is both of your best intent and interests to divorce, it is still best of interests that you do it discrete way so that your wife doesnt have ugly feeling on it and provide the information to USCIS. Divorce can get quite ugly in quite fast manner so it is just best not to disclose too much about your loved one.

 

Although if your affair is USC again, and there have been instances that I-751 with current wife is denied due to failure of establishing bona-fide marriage to USCIS and re-married to another USC going over I-485 again and finally approved, it is just not worth the risk taking it. Plus these are rare instances that USCIS will require a lot more evidences and most importantly, the political climate change has happened that these are very unlikely to be approved (like divorce with current wife, re-married to affaired love, and filling for I-485 again to start over). Of course, not to mention attorney assistance is required to deliver complicate nature of this circumstance. 

 

Hope this helps

[mindthegap 2,590]

36 minutes ago, xillini said:

If it is at-fault by you, petitioner, you won't get I-751 granted 

Utter rubbish.

 

36 minutes ago, xillini said:

Even if no-fault divorce, you still need to provide ample evidences that marriage was entered in good faith

Correct - all I-751s are adjudicated on the evidence provided.

 

37 minutes ago, xillini said:

Hope this helps

Would help even more if you didn't post total BS masquerading as fact.

[xillini 71]

@mindthegap Thanks for such an exciting response.

 

I wasnt able to find the policy manual, but find nolo.com's advice for I-751 process in case it is at-fault divorce. 

It is also common sense that falling in love with someone other than spouse during marriage is considered cheating, or adultery in legal term, which may not be punishable by U.S. common laws, but may be severely impacted on immigration status especially an alien obtains LPR through marriage. 

 

My attorney also advised that even adultery is a ground to deny N-400 during naturalization due to moral turpitude even if one of clients obtained LPR through employment-based and therefore should be avoiding it. 

 

I am very impressed to see your timeline and I hope you enjoy the process then and keep it posted!