PLEASE HELP!!! I-751 pending and divorce

[mindthegap 2,599]

31 minutes ago, cute-cactus said:

Could you please give more details about "You can be approved on a joint petition if you both show up and both wish to remain in the joint petition"? 

It means that if the USC spouse attends an interview with you, you do not have to switch to a waiver, and you can continue as a joint petition if you desire. 

Note that if the USC spouse didn't show up, then you would have to switch to a waiver or receive a denial.

[Ali7 7]

On 3/9/2018 at 9:29 AM, Damara said:

From my browsing of the forums it seems a whole bunch of people got notified they were sent to the local office. The threads Ive seen speculate it could be some sort of error. I have no idea though. It could be a massive workload transfer to the local offices. So keep that in mind. 

 

As for when to notify them the best I can say is as soon as possible. If you are going to have a quick divorce process then I dont see any reason to not send them a letter today. As posted before it is unknown how long it will take USCIS to review your letter and send an RFE, but the RFE will give you 87 days to respond so even if they send the RFE promptly you would have the final decree to send with in the time frame. 

 

Very few people get denied ROC. And separation/divorce is not a reason to deny it. 

Hi @Damara, I'm sorry for taking my time replying back. Divorce is not a pretty thing to deal with. I just wanted to thank you for taking the time to reply to me in this moment when I need help the most. My only concern is, what if we don't start the divorce process for a few months. the reason why, is because what if I get approved without an interview at any time? my October 2017 case "is" or was in CSC (since it was "transfer to my local office" as you know) and my understanding is that CSC is backed up, which means, I might have some time to wait to see what happens. But let's pretend I get called for an interview. Since we wouldn't have a decrease for our divorce,  can my soon to be ex husband attends to the interview with me and request with me to switch my I-751 to a waiver? would that cause me a big problem or a denial? I honestly don't know what to do and my husband is making my life a misery. I don't want to remain married but yet I'm scared and full of anxiety.

Edited April 15, 2018 by Ali7

[Villanelle 4,122]

Its a tough situation to be in but hang in there. Remember there are processes in place for these kinds of situations so its not as big if a crisis as it may feel.

 

What exactly is your situation right now? Are you living together? Why would you wait months to file? money issue? One of you needs time to relocate? Its hard to give advice with out knowing the specifics. Have you gotten a biometrics notice yet? (sometimes its not needed depending on the last time you went for biometrics but because of the timing of when you file ROC it almost always is needed). You should contact them again if you still havent gotten biometrics to see whats going on.

 

As for the letter saying you were sent to a local office- we already went over that. It might not mean you are getting an interview. Usually it does but because of the fact that a huge portion of people received them its unknown just yet if everyone is getting an interview that got that notice. The local office can still approve you with out one. So for that reason I still reccomend you consider sending a letter notifying them of the pending divorce. You dont have to state in the letter you want to switch to a divorce waiver just that there is divorce pending. It will take time for them to get your letter and take action. Their action would be sending you an RFE asking if you want to switch to a divorce waiver and send them the final decree. You can choose to respond that you want to stay in the joint petition (as long as the divorce is not final) and go to the subsequent interview together. I dont know if thats a good idea since you say he is making you miserable. He may not be a help at the joint interview. In which case you would go to the joint interview alone and ask there to be switched to a divorce waiver. 

 

There are many paths you can take. You can do whats outlined above or you can respond to the RFE and state you want to switch and send the decree if you have it or send no decree if you are still waiting in which case you will be sent an interview notice where you should bring the decree. If you STILL dont have it in time for the interview you go to the interview and explain that and will be sent to immigration court to present it when you do get it. If you can tell me which path you are considering or what seems most likely to happen I can go over it in more details. There are also plenty of threads on VJ about the possible scenarios. Take some time to use the search function and read through them to educate yourself. 

 

If you are not separated yet just considering divorce then its okay to be approved w/o interview (or even in a joint interview). The issue comes once you actually separate. Has that happened yet?

[mcfrl 7]

Let me share my story with you... I married back in April 2015, and we dated 4 years before that. I am Colombian and We had a looong distance relationship for the 4 years we dated, but we were friends for a long time before that, I met him through a family Friend, he used to come to Colombia every year for about a month, his dad was married to a Colombian woman as well. anyway, I also used to come here to Texas for vacation and stuff during the time we dated, I was getting my bachelor degree back home. Once I was close to get my degree he proposed and we married. I moved here and went through the process to get my green card.

 

I got a job when I was able to work, and he start doing pretty good at his. we bought a house in 2016 and things were very good, he was and still is a very good friend to me, we know each other very good. He had always tell me he doesn't want kids, and I was fine with it for a while (we met and marry young) , but lately I have this feeling inside me that I cannot give up that part, I want to become a mom, so since last year we had issues because I couldn't bring it up, we would always end up in a fight, I kept telling myself I could work this out, but I couldn't it was drowning me, we were arguing for everything, we had a fight in September last year but we agreed on make our marriage work out. 

 

My window to file for removing of conditions opened in early February, we sent the paperwork and filed jointly at the begging of February. We were planing our vacation to Colombia and we bought tickets to visit my family in April, late March one night he came home and we were kind of talking about everything, he straight out told me he didn't love me anymore and that he had met someone at work and was having feelings for her. My world broke down to pieces, I cried, I argued , but you cannot force somebody to love you, so I took the trip to see my family alone, talk to my mom about everything that was going on, sometimes that time away helps you think things right. when I came back middle of April, I moved out, we didn't ended up in a bad way, we are still friends and we love each other, just not in the same way as we both used to. I couldn't keep the mortgage of the house we owned and I wanted to move closer to my job, that is why I decided to move out.  

 

He filed for divorce May 15th, I was trying to wait as long as possible, but he didn't wanted to stay married to me. After that I contacted a lawyer not for divorce but for immigration because I do not want to lose my residency in this country, I have a life here now. And we never used a lawyer for our case before. the lawyer was awesome and give me peace of mind and hope, she told me not to do anything right now but to wait until the divorce is final and we will move from there. it is going to cost me a lot of money for what I can afford now with my own salary but I guess it is the best way to do it.

 

Divorce will be final mid July, and I will update.

[Villanelle 4,122]

Mcfrl-

 

I understand the advice the attny gave you and why. The USCIS has no policy that you must advise them you moved out/divorce is filed/the relationship is over. BUT they do have consequences for NOT notifying them. IMO you should discuss the possible consequences with your attny. You should notify USCIS of the change and its your choice if you want to remain on the joint petition or switch to a waiver. 

[Jameson78 32]

On 3/9/2018 at 10:21 AM, Damara said:

First of all you can qualify for a joint roc even if divorced. (read the memo). The issue is not the legal status of the marriage but rather the validity of the bonafides of the marriage (for however long it lasted). Like I said before when you submit a joint ROC you send a bunch of evidence. This usually includes proof of joint address and joint bills. When you separate you typically no longer share the same residence or bills or assets. This is what needs to be disclosed to USCIS so they have all the current info on the evidence you submitted. You dont want to get approved with them thinking the evidence they have is current and hasnt changed since submission. 

 

So again its not so much about the actual divorce date but about the joint evidence being accurate that they considered when approving you.  Being separated (but not yet divorced) changes the evidence.

This is obviously not how the law works. They can't actually penalize you for following the letter of the law - you do understand that, right? Once you've filed your joint submission, with facts and evidence which are, by their nature, accurate at the time of submission, then that's that, unless you literally complete your divorce in the interim. It's not up to you to try to second guess whether USCIS are doing their jobs properly, and adjudicating applications according to the correct timeframe, and to keep them up to date on everything outside of what is literally written down in the law. LOL, imagine the fun a halfway competent attorney would have with these jokers trying to argue that they denied you immigration benefits, because you didn't do something which isn't actually written down in law? Give me a break.

Edited June 27, 2018 by Jameson78

[Jameson78 32]

On 6/21/2018 at 11:06 AM, Damara said:

Mcfrl-

 

I understand the advice the attny gave you and why. The USCIS has no policy that you must advise them you moved out/divorce is filed/the relationship is over. BUT they do have consequences for NOT notifying them. IMO you should discuss the possible consequences with your attny. You should notify USCIS of the change and its your choice if you want to remain on the joint petition or switch to a waiver. 

They don't have consequences for not notifying them though (provided you were together at the time of filing), do they? They have consequences if you actually get divorced, and finalize said divorce, before they approve you, yes. But separated? Obviously not. Stop scaremongering. Unless you can point me to the relevant legal passage to back up what you're saying, that is.

[Villanelle 4,122]

3 hours ago, Jameson78 said:

This is obviously not how the law works. They can't actually penalize you for following the letter of the law - you do understand that, right? Once you've filed your joint submission, with facts and evidence which are, by their nature, accurate at the time of submission, then that's that, unless you literally complete your divorce in the interim. It's not up to you to try to second guess whether USCIS are doing their jobs properly, and adjudicating applications according to the correct timeframe, and to keep them up to date on everything outside of what is literally written down in the law. LOL, imagine the fun a halfway competent attorney would have with these jokers trying to argue that they denied you immigration benefits, because you didn't do something which isn't actually written down in law? Give me a break.

http://www.chicagoimmigrationattorney.net/images/stories/i-751-condition-nscflash19-2005.pdf

 

https://www.ilw.com/articles/2005,0621-wheeler.shtm

 

http://www.aa-law.com/index.php?option=com_content&view=article&id=441&Itemid=268

 

Revised Revision to NSC Flash #6-2005 Please note that additional clarification has been provided in regard to NSC News Flash #18 dated March 30, 2005 that amended News Flash #6 dated December 27th, 2004. The Effect of Separation/Divorce on Pending I-751 Petitions to Remove the Conditions on Residence • If the petitioner and beneficiary are divorced at the time the I-751 should be filed, the beneficiary should file the I-751 (only s/he needs to sign) and mark "d" in Part 2. • If the petitioner and beneficiary filed an I-751 petition jointly but: a)separate before a decision is made on the I-751, the beneficiary should notify the NSC that he/she is currently separated by mailing the explanation to the NSC at PO Box 82521, Lincoln NE 68501-2521. b)get divorced while the I-751 petition is pending, the beneficiary should notify the NSC that he/she is divorced, and submit a copy of the divorce decree to the NSC at PO Box 82521, Lincoln NE 68501-2521. • If the petitioner and beneficiary are separated or have initiated divorce proceedings at the time the I-751 is due to be filed, the petitioner and beneficiary may still file a joint petition if the petitioner is willing to sign the petition. If the petitioner is not willing to sign a joint petition, the beneficiary is not eligible to file a petition requesting a waiver of the joint filing requirement due to divorce until the divorce is final UNLESS abuse is the basis for such a filing. The alien’s status may be terminated because s/he has been unable to file a timely I-751 and s/he may be placed in removal proceedings. Petitioners and beneficiaries are reminded that required supporting documentation must accompany all petitions.

 

https://cliniclegal.org/resources/articles-clinic/updates-vermont-service-center-and-national-visa-center

If an I-751 application is approved before VSC has been notified of a change in circumstances impacting on the approvability of the petition, applicants should notify the VSC to reopen and correct the adjudication. 

 

Yes these are 'old' memos. The latest one is the 2009 one which does not address whether notification is needed. Certain forms like the 864 are considered valid at time of submission but theres no policy that states the 751 is the same.

 

Even on ask an attny sites attnys give various answers on how to handle separation during ROC. 

 

I dont think it is fear mongering. It is simply presenting the facts as they are. Theres nothing current that says you must notify them but there can be consequences for not notifying them. You are free to disagree.

 

[Jameson78 32]

6 hours ago, Damara said:

http://www.chicagoimmigrationattorney.net/images/stories/i-751-condition-nscflash19-2005.pdf

 

https://www.ilw.com/articles/2005,0621-wheeler.shtm

 

http://www.aa-law.com/index.php?option=com_content&view=article&id=441&Itemid=268

 

Revised Revision to NSC Flash #6-2005 Please note that additional clarification has been provided in regard to NSC News Flash #18 dated March 30, 2005 that amended News Flash #6 dated December 27th, 2004. The Effect of Separation/Divorce on Pending I-751 Petitions to Remove the Conditions on Residence • If the petitioner and beneficiary are divorced at the time the I-751 should be filed, the beneficiary should file the I-751 (only s/he needs to sign) and mark "d" in Part 2. • If the petitioner and beneficiary filed an I-751 petition jointly but: a)separate before a decision is made on the I-751, the beneficiary should notify the NSC that he/she is currently separated by mailing the explanation to the NSC at PO Box 82521, Lincoln NE 68501-2521. b)get divorced while the I-751 petition is pending, the beneficiary should notify the NSC that he/she is divorced, and submit a copy of the divorce decree to the NSC at PO Box 82521, Lincoln NE 68501-2521. • If the petitioner and beneficiary are separated or have initiated divorce proceedings at the time the I-751 is due to be filed, the petitioner and beneficiary may still file a joint petition if the petitioner is willing to sign the petition. If the petitioner is not willing to sign a joint petition, the beneficiary is not eligible to file a petition requesting a waiver of the joint filing requirement due to divorce until the divorce is final UNLESS abuse is the basis for such a filing. The alien’s status may be terminated because s/he has been unable to file a timely I-751 and s/he may be placed in removal proceedings. Petitioners and beneficiaries are reminded that required supporting documentation must accompany all petitions.

 

https://cliniclegal.org/resources/articles-clinic/updates-vermont-service-center-and-national-visa-center

If an I-751 application is approved before VSC has been notified of a change in circumstances impacting on the approvability of the petition, applicants should notify the VSC to reopen and correct the adjudication. 

 

Yes these are 'old' memos. The latest one is the 2009 one which does not address whether notification is needed. Certain forms like the 864 are considered valid at time of submission but theres no policy that states the 751 is the same.

 

Even on ask an attny sites attnys give various answers on how to handle separation during ROC. 

 

I dont think it is fear mongering. It is simply presenting the facts as they are. Theres nothing current that says you must notify them but there can be consequences for not notifying them. You are free to disagree.

 

See, therein lies the rub - you aren't actually presenting the facts as they are. You keep on pressing this issue of there being some (unspecified) "consequences" to not informing the USCIS that you've separated while the I-751 is pending, but you've provided, as far as I can tell, not one single example of said consequences, or an example of someone suffering them, whatever they may be. I am fully aware that you need to inform them of a completed divorce, because that's a categorical change of legal circumstances which dictates whether or not the form can legally be approved as filed. I am indeed aware are examples of people who've gotten divorced, kept quiet about it, and then been placed in removal or similar at an N400 interview because the USCIS didn't know that they had been divorced, and therefore not formally approvable as filed, at the time of the interview.  Even then, the issue was eventually resolved, IIRC. Regardless, that you need to tell them if you get divorced seems obvious isn't under dispute here.

 

This isn't about whether I agree with you or disagree with you - this is about one of us being objectively right, and one of us being objectively wrong. If you can point me to a single example of someone not informing the USCIS of their decision to separate (again, separate, not actually complete a divorce) before the adjudication of the I-751, and then suffering these fearful deleterious consequences that you keep telling us all about, then I'll very happily hold my hands up and admit that there is evidence that my position may be wrong, and that yours may be correct. Likewise, if you show me some current laws or even guidance indicating that applicants should disclose this to the USCIS or face legal consequences. What you linked to contains information a) that relates to NSC and is 13 years old, and has no mention of any legal consequences or lack thereof, and b) in the case of the 2009 memo, outlines that you should tell them if you complete a divorce before they have approved your application, which I don't think is in doubt at this point and which I am not disputing.

 

Until you can back up the claims that you've made very consistently on this thread with solid evidence, and not just vague agreements to disagree, which mean nothing, then I think that you ought to refrain from giving already stressed out and confused people groundless "advice."  Especially when their (paid, barred, JD-holding) lawyers have specifically said that they ought to wait until receiving a final divorce decree before informing anyone one way or the other. I'm surprised nobody's called you out on here so far, frankly.

 

 

 

Edited June 28, 2018 by Jameson78

[NikLR 13,232]

As a note, there really isnt any issue to changing to a divorce waiver if you're in the middle of it either.  Lots of people do it in the off chance they're called for interview.  

[NikLR 13,232]

The main issue I can see of not changing to a divorce waiver during a divorce is a lack of change.  If the divorce is finalized and you arent able to change to a divorce waiver before you are approved as a joint petition (but are divorced) there is likely consequences fo that further down the road. 

Do I have evidence? No.  But I can see the logical progression.  Your choice.  

[Jameson78 32]

11 minutes ago, NikLR said:

The main issue I can see of not changing to a divorce waiver during a divorce is a lack of change.  If the divorce is finalized and you arent able to change to a divorce waiver before you are approved as a joint petition (but are divorced) there is likely consequences fo that further down the road. 

Do I have evidence? No.  But I can see the logical progression.  Your choice.  

Well yes, I would agree, since this would mean that you've been approved with a petition that isn't legally approvable, since you're now divorced. A competent lawyer would get this sorted out, but that would be money and time consuming and a real headache, so best to avoid if at all possible.

[NikLR 13,232]

Fixing govt issues after the fact costs a lot money and time.  It's easily avoidable by switching to a divorce waiver when one partner files for divorce. 

Hubs works for the govt.  They're slow. They're pedantic.  Lol (he can definitely be the latter.  Thankfully so can I! Lmao)

Edited June 28, 2018 by NikLR

[Villanelle 4,122]

Jameson you obviously feel very strongly about this issue. And while I see your point I dont know that Im going to alter my position. I know the nsc flash 19-2005 is old but I cant find anything that says its no longer valid or is superseded by another memo.  

 

There are plenty of posts on the internet about people not notifying them of being separated (but not divorced) and it coming up in naturalization. During naturalization if you got a GC through marriage (doesnt matter if its 3yrs or 5yrs) they are required to look at the marriage again. So they are going to see it. For the posters online- some got a decision can not be made and then later approved. Some were told the same and denied for other reasons. And some just never post the outcome. 

 

Hmmm. Okay I guess I can shift my position a bit and stop saying severe consequences and just potential consequences. 

[santiagosilva 8]

Do we have any updates about this case at this point?

I might've just found myself in exactly the same situation .