Filing Divorce Waiver before Divorce Decree?

[AbrilJoy 5]

Hello everyone,

 

I'm filing for ROC next April. My husband and I are separated, and we can do either "filing jointly while in separation" or "divorce waiver".

We plan to divorce.

Our state North Carolina stipulates legal divorce procedure be initiated after a year of separation. 

We're not sure when spouse clearly made the decision of not getting back. It could be any time this year.

 

My question: Can I file divorce waiver while just separated, waiting for divorce?

I read in this forum that other people file divorce waiver and wait RFE to submit the final decree.

I'd like to do that if possible.

 

Many thanks for your advice!

MatchaRyokucha

 

PS. I'm new here. Filling out timeline soon.

 

 

[Lemon23 400]

1 hour ago, MatchaRyokucha said:

Hello everyone,

 

I'm filing for ROC next April. My husband and I are separated, and we can do either "filing jointly while in separation" or "divorce waiver".

We plan to divorce.

Our state North Carolina stipulates legal divorce procedure be initiated after a year of separation. 

We're not sure when spouse clearly made the decision of not getting back. It could be any time this year.

 

My question: Can I file divorce waiver while just separated, waiting for divorce?

I read in this forum that other people file divorce waiver and wait RFE to submit the final decree.

I'd like to do that if possible.

 

Many thanks for your advice!

MatchaRyokucha

 

PS. I'm new here. Filling out timeline soon.

 

 

Yes, you can do that. You can send the final divorce decree if USCIS sent your RFE to send the final divorce decree

Also, i would suggest to create a letter and explain to USCIS that your divorce decree is still in process so they would know your current status.

[mindthegap 2,590]

 

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

 

 

[AbrilJoy 5]

Thanks Lemon, I think so too.

A lawyer, at the consultation, said "we don't do that because there's only married or single and if you're divorced, there's a place to put in the divorce date. We don't want to put incorrect information on the I-751."

 

[AbrilJoy 5]

2 hours ago, mindthegap said:

 

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

 

 

 

Hi mindthegap, your timeline is amazing!

 

This memo is very difficult for non-English natives to understand, but it clearly states RFE will be issued if you're in the legal separation.

So the lawyer I talked today is just super rigid??

 

Oh I have to find out what the legal separation in my state is.

 

Do you know which is more favorable, "joint but separated" filing or " divorce waiver"?

(Not considering of possible interview 1+ year later)

That said, I know our marriage shouldn't be swayed by this process....

 

 

[mindthegap 2,590]

34 minutes ago, MatchaRyokucha said:

 

Hi mindthegap, your timeline is amazing! 

 

Yes...amazingly s***e.

 

 

The lawyer is correct - there are only two states as far as USCIS is concerned- married or divorced. Remember that you can notify them that you are separated without having to file a waiver, and that even if you are divorcing/divorced, you are still eligible to file jointly if you are still able to be in the same room as one another and the USC spouse is willing to attend an interview if called for one.

You as the alien 👽 have the right to switch to a waiver at any time though, should relations take a turn for the worse at a later date.

 

If you file with or add a divorce waiver, then they should issue an RFE for the final decree, giving you 87 days to produce it. 

If you can't- which could happen if it takes a year in your state- then in all likelyhood you will receive a denial. 

Now, this sounds bad, but an immigration judge (who you would see after an NTA issued following a denial and is the only one who can issue a final order of removal therefore stripping you of your LPR status) would then stay proceedings pending the final decree being in hand,and in the end all should be well, albeit via a convoluted route.

 

 

 

Consider your options and timing very carefully, as this has potential for a boat load of stress and additional expense for you.

 

 

 

As for which is more favorable...both are adjudicated on the evidence provided. 

 

 

Edited December 18, 2017 by mindthegap

[AbrilJoy 5]

29 minutes ago, mindthegap said:

Yes...amazingly s***e.

 

 

The lawyer is correct - there are only two states as far as USCIS is concerned- married or divorced. Remember that you can notify them that you are separated without having to file a waiver, and that even if you are divorcing/divorced, you are still eligible to file jointly if you are still able to be in the same room as one another and the USC spouse is willing to attend an interview if called for one.

You as the alien 👽 have the right to switch to a waiver at any time though, should relations take a turn for the worse at a later date.

 

If you file with or add a divorce waiver, then they should issue an RFE for the final decree, giving you 87 days to produce it. 

If you can't- which could happen if it takes a year in your state- then in all likelyhood you will receive a denial. 

Now, this sounds bad, but an immigration judge (who you would see after an NTA issued following a denial and is the only one who can issue a final order of removal therefore stripping you of your LPR status) would then stay proceedings pending the final decree being in hand,and in the end all should be well, albeit via a convoluted route.

 

 

 

Consider your options and timing very carefully, as this has potential for a boat load of stress and additional expense for you.

 

 

 

As for which is more favorable...both are adjudicated on the evidence provided. 

 

 

Mindthegap, thanks, just confirming: So there's nothing wrong in filing I-751 with divorce waiver, right?

Check the "Divorced" box, leave the "date it ended" blank, and wait for RFE. If the divorce decree comes faster, send it to USCIS before RFE.

 

We are separated for some time, which should start the clock counting. Considering the processing time of VSC, I think decree would come in time.

Filing in: April 2018

Separated from: autumn 2017

 

I'll consult with a lawyer too, but today's lawyer flatly denied the RFE course. I don't think I'll hire him.