i751 and N400 pending, marriage falling apart, advice needed

[togur 0]

i filed my i751 in june 2016, which was never approved due to the backlog. My attorney told me to file my N400 in mid 2017 which i did.

 

It seems that filing my N400 made my i751 paperwork meaningless and now the priority date is for my N400, which according to my service center is a full 12 months behind when i filed, so i can assume an N400 interview date around January 2019. 

 

Long story short, my marriage is now falling apart, We've been married for over 4 years.

 

Aside from the stress of a failing marriage i know have to worry what this means for my life i have built, i have been in the USA for 7 years now. 

 

 I know what i have to do: file for divorce, withdraw N400 (ill be eligible next year as a 5 year GC holder), notify USCIS to amend my i751 from joint to divorce waiver.

 

My question is what sequence do i do this? the state i live in takes 60 days from filing divorce to approval.. My lawyer is pretty crappy and keeps giving me ambiguous answers like 'you could do this...' 

 

Since he already told me that filing my N400 wouldn't affect my i751 paperwork when it did, im taking his advice with a grain of salt. 

 

Do i file for divorce, then send a letter withdrawing N400 and another letter requesting to amend i751? do i just send one letter to withdraw N400 and amend i751? 

 

Or, do i file for divorce and wait for it be final before withdrawing N400 and amending my i751?

 

My concern is i have no idea what withdrawing my N400 does to my priority date, if they request me in for i751 interview pretty quickly since i'm way past my i751 priority date my divorce may not be finalized (yes i know this would be a case of going to a judge once divorce is final but i really want to avoid that).

 

As with any divorce we aren't at a stage where we could just go file tomorrow, we are currently refinancing cars, and filing taxes and we agreed we want to get all that out the way before beginning to sever our ties completely... since my N-400 priority date is 12 months away, i think i have plenty of time to figure this all out without rushing.

 

Secondly, what are the chances of a divorce waiver being approved? our marriage was legitimate, she was in college and we got married in a court house and planned to be properly married once she graduated and i had saved up for it.. although she switched majors and is still in school 4 years later. We never really went on holiday anywhere, and we weren't a 'selfie' couple, so we have maybe 30 or so photos (with us both in) over the 4 years.

 

My main evidence is:

• - house deeds with our names as husband and wife (we were married when we bought it, and its a common property state) 
• - Joint home insurance 2014/15/16/17
• - Joint property tax appraisals 15/16/17/18
• - taxes filed jointly 14/15/16 (taxes for 17 not filed yet).
• - just received a 1095-C for last year that shows us both covered under insurance (im hoping i can get one for previous years but ive never received a 1095-C before). 
•  - all our W-2s for 14/15/16/17 show our joint address.
• - Various bills like gas, water, electricity, cable and HOA (although i only added her to them January 2018 as i did not know about evidence required until very recently)
• - Joint car insurance 2014/15/16/17
•  - 2016 AAA joint membership.
• - both drivers licenses have our joint address.
• - current health care card from my employer with her named as my dependent
• - my 401k with her as my beneficiary
• -  we share a credit union bank account but it hasn't really been touched in over a year. We both use separate chase accounts and chase needed us to come in together to combine them       and we never did due to school and work commitments... never really felt the need, we used the Amex all the time and i paid it off.
• - Shared Amex, statements going back to 2015 which break down her spending and my spending each month.
• - we just opened another joint credit card to balance transfer some purchases for the house and spread them over interest free 18 months.
• - Car title that shows both names as we purchased a car together.
• - Currently refinancing one of the cars we bought together, but will probably only have at most 2 statements together before divorce is final.
• - Tax receipt with both names when purchasing car together.
• - a couple of HOA letters we received lately about mowing our lawn.
• - thousands of daily texts messages from 2014 through to late 2017 (not sure how to use these, they just print off in plain text)
• - various emails over the years, did not use email often but she would send me Christmas wish lists etc.

 

If required i'm sure i could get an affidavit from my neighbors who have seen us daily for 4 years and helped us out of a couple of jams. I could also maybe get one from my realtor who spent a solid 6 months with us both searching for the perfect family home.

 

I'm just very concerned, i'm not sure what else i could really have to prove this was a bonafide marriage and that we did live together in a happy marriage for over 4 years... is all of this considered solid enough proof? i know there is no definitive answer to this question, id just like some advice on how my situation looks from the outside from people who have experience. As you can imagine im just freaked by all the 'what ifs' since my marriage has broken down. 

Edited January 30, 2018 by togur

[togur 0]

No advice? wow. i think this is the first time ive ever seen a thread ignored by everyone

[Name O Boy 511]

56 minutes ago, togur said:

No advice? wow. i think this is the first time ive ever seen a thread ignored by everyone

Hi there. Sorry to hear about your situation. As far as I know, you have to withdraw your N-400 because you no more qualify for the marriage-based naturalization. Let's assume your divorce is in the process not finalized and USCIS calls you for an interview which will be a combination of I-751/N-400 interview. You can not lie during your interview or USCIS would have investigated everything about you before scheduling you for an interview. Since you are no more living with your spouse and I assume you are separated which disqualify you for N-400. I would suggest withdrawing N-400 application to avoid complications and problems. You have sufficient evidence as you have listed if they ever send you RFE, you can provide the documentation with a cover letter explaining your situation. If USCIS send you an interview notice you can bring all the evidence and explain your situation. My opinion for you is to inform USCIS as soon as possible because you should follow the law not opinions. As long as you abide by the law you will always be on the safe side. 

Edited January 31, 2018 by Name O Boy

[togur 0]

14 hours ago, Name O Boy said:

Hi there. Sorry to hear about your situation. As far as I know, you have to withdraw your N-400 because you no more qualify for the marriage-based naturalization. Let's assume your divorce is in the process not finalized and USCIS calls you for an interview which will be a combination of I-751/N-400 interview. You can not lie during your interview or USCIS would have investigated everything about you before scheduling you for an interview. Since you are no more living with your spouse and I assume you are separated which disqualify you for N-400. I would suggest withdrawing N-400 application to avoid complications and problems. You have sufficient evidence as you have listed if they ever send you RFE, you can provide the documentation with a cover letter explaining your situation. If USCIS send you an interview notice you can bring all the evidence and explain your situation. My opinion for you is to inform USCIS as soon as possible because you should follow the law not opinions. As long as you abide by the law you will always be on the safe side. 

Thank you for your response. 

 

I'm not sure how much of my post you read but i said i know if/when i divorce i have to withdraw my N400.

 

My questions were more in regards to:

• The timing of when to do notify USCIS.
• How do i notify USCIS (two separate letters for i751 and N400? or one single letter?)
• How my evidence of bonafide marriage looks. 

I dont know why this thread is being ignored, i lurk on here all the time and people get lots of good advice.. but when i post, i'm ignored. 

[mindthegap 2,607]

1 hour ago, togur said:

The timing of when to do notify USCIS.

Whenever you have commenced divorce proceedings.

As you say your state has a quick divorce period, then you don't really have to delay it, as you have a lower risk of an failing to provide the final decree before any RFE requesting it once you notify.

 

As long as you do, that is all that matters. You do not want to receive an approval before notifying them.

 

1 hour ago, togur said:

How do i notify USCIS (two separate letters for i751 and N400? or one single letter?)

I would write one, enclosing a copy of the I-751 receipt, sent to the address on that receipt.  

 

Perhaps don't do anything about the N-400, and when the N-400 interview gets scheduled, keep rescheduling it and rescheduling it, until it is within the five year eligibility period. Then, when you do get to the N-400 interview, request that it be amended to be under the five year eligibility.

Will it work? Maybe, maybe not, but you aren't going to get a refund of the filing fee, so it is worth a go, and could also get it done very quickly when legally eligible under the five year rule rather than having to refile again and start the wait all over again.

Worst case, you have to file again and pay the filing fee again.

 

1 hour ago, togur said:

How my evidence of bonafide marriage looks. 

None of us are USCIS adjudicators. If they want more, they will ask for it. If you can provide it, do so. If you can't, then state why. 

 

1 hour ago, togur said:

I dont know why this thread is being ignored, i lurk on here all the time and people get lots of good advice.. but when i post, i'm ignored. 

They are probably still reading your long post from yesterday... (didn't you post something similar and equally long a while back)?

 

Keep it simple, stupid.

Edited January 31, 2018 by mindthegap

[togur 0]

10 minutes ago, mindthegap said:

Whenever you have commenced divorce proceedings.

As you say your state has a quick divorce period, then you don't really have to delay it, as you have a lower risk of an failing to provide the final decree before any RFE requesting it once you notify.

 

As long as you do, that is all that matters. You do not want to receive an approval before notifying them

thanksfor the replies.

 

We havent divorced yet just working things out so will file once that happens, will take some time with lawyers i assume.

13 minutes ago, mindthegap said:

Perhaps don't do anything about the N-400, and when the N-400 interview gets scheduled, keep rescheduling it and rescheduling it, until it is within the five year eligibility period. Then, when you do get to the N-400 interview, request that it be amended to be under the five year eligibility.

Will it work? Maybe, maybe not, but you aren't going to get a refund of the filing fee, so it is worth a go, and could also get it done very quickly when legally eligible under the five year rule rather than having to refile again and start the wait all over again.

Worst case, you have to file again and pay the filing fee again.

 

Losing the filing fee is the least of my worries, ill check with my attorney but i assume when i notify them of a change from i751 to waiver ill have to notify them of my or N400 though the 3 year rule, might look strange leaving that paperwork in place when im divorcing (also since both are now tied together).

 

14 minutes ago, mindthegap said:

None of us are USCIS adjudicators. If they want more, they will ask for it. If you can provide it, do so. If you can't, then state why. 

I know, but ive seen people who have a lot of experience say your evidence looks solid, or you need extra etc.

 

15 minutes ago, mindthegap said:

They are probably still reading your long post from yesterday... (didn't you post something similar and equally long a while back)?

I mean it only takes a couple of minutes to read, i did post a while back and didnt get any reply. I guess maybe i should shorten it into multiple threads/questions instead of one.. people just seem to want to reply to one line questions. 

[Villanelle 4,122]

Im sorry you feel ignored on here. Its happened to all of us! I have yet to figure out what makes some threads 'hot' and others cold...

 

Anyway Im not 100% sure about what you should do. Very few people fall into this situation (where they have roc pending and the n400 and are divorcing). It happens, but its not a common issue being posted about. Personally I agree with mindthegap- one letter should be sufficient. 

 

Also, no one here really knows the intricates of how USCIS processes stuff. Its all based on users experiences, known policies etc. So its hard to say what will happen now that you want to withdraw the n400. You shouldnt go back to the beginning of the line- but USCIS will have to do something on their end to untangle the two petitions that they merged when you filed the n400. I wouldnt worry so much about what they have to do on their end. Just trust that they will do it and it will be okay. 

 

Your evidence list looks pretty solid. The most important thing they look at is shared assets and daily debts. I understand you dont use the same checking account but as long as you can explain it and show payments were made from both of you for joint expenses you will be fine. You didnt mention anything about that. If you paid all the utilities and she paid the rent or if it was the other way around. Or if you as the primary breadwinner paid all the bills plus her personal expenses. Also when you get divorced the divorce decree becomes an important piece of evidence. It breaks down all your joint debts and assets. It also will say something along the lines of you lived together jointly at X address until X date. 

 

Personally I always advise people to advise USCIS asap when divorcing and a ROC is pending as you dont want them to approve it with out knowing things have changed. You can expect them to take 30-60 days to receive/respond to your letter and request the divorce decree. And that request from them gives you the standard RFE response time/ The fact that the 751 is merged with your n400 makes it harder to predict how long it will take for them to send you an RFE for the divorce decree. I understand you want to avoid going to court but by doing so you risk the 751 getting approved with out all the info. 

[togur 0]

6 minutes ago, Damara said:

Your evidence list looks pretty solid. The most important thing they look at is shared assets and daily debts. I understand you dont use the same checking account but as long as you can explain it and show payments were made from both of you for joint expenses you will be fine. You didnt mention anything about that. If you paid all the utilities and she paid the rent or if it was the other way around. Or if you as the primary breadwinner paid all the bills plus her personal expenses. Also when you get divorced the divorce decree becomes an important piece of evidence. It breaks down all your joint debts and assets. It also will say something along the lines of you lived together jointly at X address until X date. 

Thanks for the detailed response, this helps a lot. 

 

We have a shared checking account (the credit union with some savings in) but it was never our main account, and when i got a new job a year ago i just put my direct deposit to my Chase (as finding my credit union ATM was a pain).

 

Luckily the Amex which dates back to around 2015 shows my purchases and hers (broken down by name), and shows generally me paying bills/buying stuff and her buying groceries.

 

She was, and still is a student, i took care of her and told her to keep most of her money to herself to spend on books or makeup etc. I paid the mortgage, insurance, etc.etc. we split groceries and some bills and i have chase quick pays where she would send me about $350 a month to pay off on the Amex. I dont know if these seems suspicious that a married couple would do finances like this? It was the easiest way for us to pay everything (using my Amex with her as a named user as Amex dont have joint accounts), and then shed just transfer me around $350 for groceries and bills she could help out with.

 

I wasnt aware the divorce decree will break down the assets, that will be interesting. We havent worked out what we are doing with the joint owned cars etc. yet. 

 

12 minutes ago, Damara said:

Personally I always advise people to advise USCIS asap when divorcing and a ROC is pending as you dont want them to approve it with out knowing things have changed. You can expect them to take 30-60 days to receive/respond to your letter and request the divorce decree. And that request from them gives you the standard RFE response time/ The fact that the 751 is merged with your n400 makes it harder to predict how long it will take for them to send you an RFE for the divorce decree. I understand you want to avoid going to court but by doing so you risk the 751 getting approved with out all the info. 

All the advice has been pushing me towards this, but my Attorney said not to send the letter until i file for divorce. The refinancing of our car is just being finalized and i need to find an attorney so im hoping to file in Feb and then send a letter to USCIS. 

 

My priority date for N400 is still an entire year away so i believe i have plenty of time. 

 

I'm just freaked out by it all, i wasnt expecting this and its very hard to concentrate on work, suddenly having my life on the line is nerve wracking. 

 

I have to keep telling myself my Attorney tells me the requirement to prove bonafide marriage is the same whether joint or divorced at this point, so they shouldn't deny it since we were legit married for four years... still very hard not to stress about it all.

 

 

[Villanelle 4,122]

Well it is a stressful process. Hang in there. 

 

You have to remember USCIS does not have specific requirements on HOW a couple splits expenses. Everyones situation is different. Thats why you need to send a letter explaining like you did here how things were paid and the reason why. Ideally they would like to see a joint account with both parties money going in and bills and such coming out. In reality many people dont live that way. But USCIS is not going to connect the dots and figure out how you set up accounts and did payments. You have to outline it for them. I hope you sent a letter doing such. If you havent then when you send a letter requesting to drop the n400 you can use the opportunity to submit additional evidence like a letter outlining your finances. 

 

Is your lawyer an immigration lawyer well versed in 751? Some attnys are better then others. Some just go by the exact letter of the law others know the little tricks that help make things go smoother. 

 

Are you currently separated from your spouse? meaning living in different locations? If you are thats a material fact that you need to disclose as soon as possible. If you are still living together and are still married and waiting to file divorce before someone moves out then you should be "okay" waiting until you file the divorce decree. USCIS moves slow and its always hard when you are trying to time things to work with their timelines because they are so unpredictable. 

 

Heres a general memo-https://www.uscis.gov/sites/default/files/USCIS/Laws and Regulations/Memoranda/cond_perm_resident_.pdf

 

Note it says the 751 must be adjudicated prior to or concurrently with the n400.  So it can be either be before the n400 is handled or at the same time. Presently (based on user experiences) they are doing it concurrently. The service center has been sending both files to the local office for adjudication. However they still have the right to process it at the service center. This is why I can not say (nor can your lawyer) with 100% certainty that your applications are merged like 99% of them are and your file is at the local office level waiting to be adjudicated together. You can call and ask a tier 2 rep about the exact location of your 751. Maybe they can tell you. But theyve also been known to give incorrect info... Maybe the local office has both your files and they decide to process the 751 (since your priority date has long passed) and then work on the n400. Who knows? And no one can really tell you how they are going to decide to work on your file. The best you can do is look at others experiences which have been them holding the 751 and adjudicating together. One interview for both purposes. 

 

So like I said before when you advise them of the withdrawal of the n400 and the switch to divorce waiver it is unknown how they will proceed. They will have to unmerge the two and that can take some time. 

 

Im assuming you have never been divorced before. Perhaps on google are examples of divorce decrees for your state? They cover everything from time lived together to joint accounts (who gets what from them) to separate debts (who pays for which). Just because the Amex is in your name does not mean you automatically are responsible for the entire bill.  The more specifics in the divorce decree about the assets and debts the better it is for immigration purposes. Sometimes these things are covered in the separation agreement (if your state does that) and then you would include the separation agreement along with the divorce which would basically say everything in the separation agreement is approved. So both documents become important for USCIS.

 

Do you think you will have a smooth divorce or a contentious one? Are you in basic agreement about who is getting what. Alimony? Property division? The only other piece of advice I can give you is to take as much time as you need with the divorce. Dont agree to unfavorable terms simply because you feel you need the final decree for USCIS> They will wait for it. Yes, you can end up having to present the final decree in court but its not as big of a deal as it seems.