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

mindthegap · January 23, 2018

3 hours ago, xillini said:

Thanks for such an exciting response.

Pleasure

3 hours ago, xillini said:

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.

The current USCIS memos, policy and the law re: separated/divorced spouses for I-751 and N-400 make no distinction nor bias for which party commenced divorce proceedings as being a cause for denial.

3 hours ago, xillini said:

It is also common sense that falling in love with someone other than spouse during marriage is considered cheating, or adultery in legal term

Of course. It is also a pretty scummy thing to do, but it does unfortunately happen.

3 hours ago, xillini said:

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.

I think you are getting confused with fraud which is another matter entirely.

I-751s are adjudicated on the evidence provided, and as is human nature, it stands to reason that there is a certain amount of subjectiveness applied, depending on who is adjudicating.

If a LPR was to immediately file for divorce upon gaining permanent residence, and present no evidence of a bona-fide marriage that is not for the purposes of evading immigration law, then yeah, they may well be denied due to a combination of these things, as it may be a strong indicator of fraud. Taken in isolation though, the fact that the LPR filed for divorce rather than the USC spouse is not grounds for denial of an I-751 petition when presented with evidence of bona-fide-ness to the required standard.

N-400s are more factual and for the most part has clear cut eligibility requirements with less subjectiveness applied. If applying under the three year rule, you must be living in marital union. If applying under the five year rule, the marriage which permanent residence was gained is largely irrelevant as the LPR is eligible under different criteria.

3 hours ago, xillini said:

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.

Repealed by public law 97-116 (INA 101(f)(2)).

Not all attorneys are created equal. A large part of practicing law is the individuals interpretation of it.

3 hours ago, xillini said:

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

Impressive or enjoyable certainly aren't words that I would use. It truly sucks in every respect and I de but will hopefully be over with soon.

ps -

Your sarcasm needs work: C-

Scazy · January 23, 2018

9 hours ago, mindthegap said:

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

This made me laugh) honestly I haven't bumped into a such unrealistic post until this.

8 hours ago, xillini said:

@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!

I think you wasn't able to find a policy manual on the subject because there is none? I never heard. Also I haven't heard about immigration laws on cheating and it's totally strange for me to assume that it could be treated as a moral turpitude preventing you from getting approved for citizenship solely based on it. For 751 you have to prove that you ENTERED marriage in a good faith - USICS gives a pretty good idea how to do so by submitting evidences that would speak for itself. As mindthegap said, fast divorce after obtaining a green card and absence of evidence would definitely hurt the applicant with or without cheating. But if you established as a married couple but oh well love has changed for any of you, you or your spouse cheated, you name it - it is NOT a basis for denial.

Your lawyer must be a person of high morals, but don't mix it with this process, unless you CIMT.

Edited January 23, 2018 by Scazy

AH&JH · February 3, 2018

HI,

Im also in this awful situation (as if divorcing wasn't already traumatizing we also have to deal with the fear of immigration)

My story:

1. We filed jointly November 2016 (CSA), the marriage fell apart and I moved out of the house August 2017.

2. I informed USCIS about the change of address through their website

3. I consulted a lawyer and also tried to find information in the forum.

4. Based on my findings I made an Infopass appointment October 2017 and tried to have the officer to add to my case a letter informing that my marriage was falling apart and my husband filed for divorce in September and we had a court hearing scheduled November 2017, the officer said he could not receive the letter and advised to mail it.

5. I mailed the letter with a tracking number and kept the notification that it was delivered to USCIS (Same office that has my case). I haven't heard back from USCIS and have not have any update in my case no RFE either

* My lawyer told me USCIS would probably act in one of the following ways

a. Review my joint application and found enough evidence that the marriage was entered in good faith and it simply didn't work out and approve my 10 year greencard

b. Review my joint application and send an RFE requesting divorce decree ---> If I have divorce decree I will send it ---> they will make a decision

b.1 If I don't have divorce decree, Send documents of pending divorce plus the letter where I informed USCIS of my divorce, ---> I understand they will give me 2-3 months to get the divorce decree

c. Review my joint application and request an interview ---> If I have divorce decree: I will go to the interview with the decree and request to switch to a waiver ---> they will approve or switch to divorce waiver

c.1 If I don't have divorce decree I will go with all the divorce documents and the letter that I sent to USCIS informing about my pending divorce and request to switch to divorce waiver

What I also understand is that if USCIS request for divorce decree and you don't have it, they will give you a period of time (don't remember if 2 or 3 months) to get it.

If in that period of time the divorce is not finalize (so you don;t have the divorce decree) they will reject your application BUT you will go to court and the judge will give you more time to get the divorce finalized and get the decree.

A divorce in California takes a minimum of 6 months so in my case if everything is resolved on time between my ex and I that would put me on getting the decree on March 2018

Now Im just hoping that my divorce get finalize before USCIS gets to my case.

I hope this information is useful fro other people in the same situation. If for some reason you know for certain that I have something wrong in here, PLEASE ADVISE, I feel everyone has similar but different information and it would be really helpful if people that has already gone through this process chimes in.

Thank you in advance!!!

AH&JH · February 3, 2018

Updated with more info, please delete previous post if possible, I couldn't edit

HI,

Im also in this awful situation (as if divorcing wasn't already traumatizing we also have to deal with the fear of immigration)

My story:

1. We filed jointly November 2016 (CSA), the marriage fell apart and I moved out of the house August 2017.

2. I informed USCIS about the change of address through their website

3. I consulted a lawyer and also tried to find information in the forum. Based on my findings IT IS VERY IMPORTANT TO NOTIFY USCIS OF YOUR SITUATION (because if you fail to do so and they approve your joint application, you can have problems once you try to apply for citizenship as they can deny it stating that you didn't inform you were divorced/divorcing so your joint app wasn't valid)

4. I made an Infopass appointment October 2017 and tried to have the officer add to my case a letter informing that my marriage was falling apart and my husband filed for divorce in September 2017 and we had a court hearing scheduled November 2017, the officer said he could not receive the letter and advised to mail it instead.

5. I mailed the letter with a tracking number and kept the notification that it was delivered to USCIS (Same office that has my case). I haven't heard back from USCIS and have not had any update in my case on the website, no RFE either.

6. Jan 2018 I made another info pass appointment to have my passport stamped as my extension letter was close to expire. I asked the officer if he have any information about my case, he said the only information he had was that this process is now taking 1 to 2 years, more close to 2 years.