I filed my I751 jointly now I am going through divorce, how can I change it to waiver?

[Abby2018 4]

 

I and my spouse filled my I751 jointly, it’s been 11months now that I filed. I and my spouse have been going through some ups and down and I decided to file for divorce. my lawyer filed the divorce last month. However, I have been worried because I thought I need to notify USCIS, I discuss it my my lawyer and he said the immigration rules and procedure on this issue are not clear to him, Therefore, He want to speak with an immigration officer to get a better feel for the procedures that will be applied once UCSIS learns that I have filed for a divorce. He further said if I choose to tell, USCIS might ask me to start a new application or denial my application. Please anyone with clear understanding should help me.

[Going through 5,671]

23 minutes ago, Abby2018 said:

I discuss it my my lawyer and he said the immigration rules and procedure on this issue are not clear to him, Therefore, He want to speak with an immigration officer to get a better feel for the procedures that will be applied once UCSIS learns that I have filed for a divorce.

Is your lawyer an immigration lawyer, or just a divorce lawyer?

 

Since you are now divorcing, you can continue your ROC with a divorce waiver.  

 

https://www.uscis.gov/green-card/after-green-card-granted/conditional-permanent-residence/remove-conditions-permanent-residence-based-marriage

 

How to Get a Waiver of the Requirement to File a Joint Petition

If you are unable to apply with your spouse to remove the conditions on your residence, you may request a waiver of the joint filing requirement. You may request consideration of more than one waiver provision at a time.

 

You may request a waiver of the joint petitioning requirements if:

• Your deportation or removal would result in extreme hardship
• You entered into your marriage in good faith, and not to evade immigration laws, but the marriage ended by annulment or divorce, and you were not at fault in failing to file a timely petition
• You entered into your marriage in good faith, and not to evade immigration laws, but during the marriage you or your child were battered by, or subjected to extreme cruelty committed by your U.S. citizen or permanent resident spouse, and you were not at fault in failing to file a joint petition

Note: Refer to Form I-751 for more specific information on waivers

 

If You Are In Divorce Proceedings But Are Not Yet Divorced

If you are still married, but legally separated and/or in pending divorce or annulment proceedings, and:

• You filed a waiver request. We will issue a request for evidence (RFE) specifically asking for a copy of the final divorce decree or annulment (if applicable).
• You filed a Form I-751 petition jointly. We will issue a request for evidence (RFE) specifically asking for a copy of the final divorce decree or annulment and a statement that you would like to have your joint filing petition treated as a waiver.

Upon receipt of the final divorce decree or annulment within the specified time period, we will amend the petition, to indicate that eligibility has been established for a waiver of the joint filing requirement based on the termination of the marriage.

Edited May 9, 2018 by Going through

[Abby2018 4]

Thank you. My lawyer is immigration/ divorce lawyer 

[Deagle 508]

I was in the exact same situation as you. Filed ROC and got after about 9 months filed for divorce and it was finalized after 11 months from filing I-751. I didn't tell USCIS anything because that was in 2017 and there was nothing in the instructions that say I should inform them if a divorce happened. On the date of filing I was legally married and I stay married for 11 months after that. My petition was approved and my GC was mailed to me then around 20 days later the divorce was finalized. After that I moved out to a new place and I changed my address with them.

[Abby2018 4]

6 minutes ago, Deagle said:

I was in the exact same situation as you. Filed ROC and got after about 9 months filed for divorce and it was finalized after 11 months from filing I-751. I didn't tell USCIS anything because that was in 2017 and there was nothing in the instructions that say I should inform them if a divorce happened. On the date of filing I was legally married and I stay married for 11 months after that. My petition was approved and my GC was mailed to me then around 20 days later the divorce was finalized. After that I moved out to a new place and I changed my address with them.

Thank you. Please let me ask you. When did you apply for your roc, after you approval did you notify them of your divorce. 

[Going through 5,671]

@Damara would probably have good info on possible outcomes depending on divorce proceedings during ROC (as well as info on possible outcomes when NOT informing USCIS when one goes through the ROC when divorce has been filed)

[Villanelle 4,122]

H er e are two recent threads with a lot of info. If you still have questions about your specific situation please post them here.

 

 

 

[Abby2018 4]

On 5/9/2018 at 10:25 AM, Damara said:

H er e are two recent threads with a lot of info. If you still have questions about your specific situation please post them here.

 

 

 

Thank you @Damara . I have asked my lawyer to notify them. 

[Abby2018 4]

On 5/9/2018 at 10:25 AM, Damara said:

H er e are two recent threads with a lot of info. If you still have questions about your specific situation please post them here.

 

 

 

Thank you for your help @Damara after going though the tred I decided to tell me lawyer to inform USCIS of my on going divorce. Here is what my lawyer said and I am very confused please advice. “”” please understand that I cannot guarantee a favorable result or take any responsibility for the consequences that ensue.  To be clear, I think you are making the right decision to follow all U.S. immigration laws and regulations.  However, in this case the law is not entirely clear.  Further, unfavorable consequences sometimes occur as a result of following laws and rules.  Therefore, once you inform USCIS of the pending divorce action, your petition may be sent to the back of the processing queue increasing your wait time by several months or USCIS may deny the petition entirely and you could end up in removal proceedings.  After you have given the matter sufficient thought and consideration, if you still want me to send the letter, please reply with your consent and authorization.  Your reply should include the phrase “I hereby consent and authorize you to send a copy of the letter you have prepared to USCIS to inform the agency of my pending divorce action.

 

please @Damara advice me.

[Going through 5,671]

8 hours ago, Abby2018 said:

Thank you for your help @Damara after going though the tred I decided to tell me lawyer to inform USCIS of my on going divorce. Here is what my lawyer said and I am very confused please advice. “”” please understand that I cannot guarantee a favorable result or take any responsibility for the consequences that ensue.  To be clear, I think you are making the right decision to follow all U.S. immigration laws and regulations.  However, in this case the law is not entirely clear.  Further, unfavorable consequences sometimes occur as a result of following laws and rules.  Therefore, once you inform USCIS of the pending divorce action, your petition may be sent to the back of the processing queue increasing your wait time by several months or USCIS may deny the petition entirely and you could end up in removal proceedings.  After you have given the matter sufficient thought and consideration, if you still want me to send the letter, please reply with your consent and authorization.  Your reply should include the phrase “I hereby consent and authorize you to send a copy of the letter you have prepared to USCIS to inform the agency of my pending divorce action.

 

please @Damara advice me.

I'm not Damara....but it looks like your lawyer is just making that statement to cover himself in case a client decides to turn around and tries to sue/complain for something that's not his fault/doing.   Everything he said in the statement is pretty much standard---that he needs your outright consent and authority to send the letter on your behalf, and that he cannot guarantee a favorable result (no lawyer can, by the way).

 

Your application cannot be approved until USCIS receives the final divorce decree, which yes can delay your processing for a bit--- that doesn't mean you will be denied outright for telling them you are divorcing. 

[mindthegap 2,610]

A lawyer covering his backside - quelle surprise

 

Divorce waiver petitions are adjudicated on the evidence provided, exactly the same as a joint filing - it cannot be denied solely because of a divorce. Nor would your current filing go to the back of the queue. 

If it was denied (which is unlikely without an interview first), then you can immediately file a new I-751 with a divorce waiver right off the bat. This immediately puts you back in full status.

Furthermore, at any immigration court hearing, the burden is switched to the Govt. to prove fraud/intent to circumvent or evade immigration law (rather than the I-751 on which the petitioner must prove the opposite with evidence) - difficult for the Govt. if it was legit and there is no evidence of such fraud.

Edited May 15, 2018 by mindthegap

[ApplyingforN400 126]

On 5/8/2018 at 5:43 PM, Deagle said:

I was in the exact same situation as you. Filed ROC and got after about 9 months filed for divorce and it was finalized after 11 months from filing I-751. I didn't tell USCIS anything because that was in 2017 and there was nothing in the instructions that say I should inform them if a divorce happened. On the date of filing I was legally married and I stay married for 11 months after that. My petition was approved and my GC was mailed to me then around 20 days later the divorce was finalized. After that I moved out to a new place and I changed my address with them.

I dont want to alarm you but I read of a case just like yours, one day while crossing the border, they got to the bottom of the dates and he was detained and sent to immigration court. 

 

While the law is unclear here, you were suppose to tell them, in the eyes of the USCIS going through divorce is considered divorce hence why they sometimes accept divorce filing as divorce decree. 

 

This will def come up once you file the N400. 

 

Again i hope Im wrong since you were married for more than two years and deserve your 10 year green card but Ive noticed they dont take kindly to being uninformed in cases like yours.  

[Deagle 508]

14 hours ago, ApplyingforN400 said:

I dont want to alarm you but I read of a case just like yours, one day while crossing the border, they got to the bottom of the dates and he was detained and sent to immigration court. 

 

While the law is unclear here, you were suppose to tell them, in the eyes of the USCIS going through divorce is considered divorce hence why they sometimes accept divorce filing as divorce decree. 

 

This will def come up once you file the N400. 

 

Again i hope Im wrong since you were married for more than two years and deserve your 10 year green card but Ive noticed they dont take kindly to being uninformed in cases like yours.  

After reviewing my archived letters and documents, I realized that I actually sent a letter to the USCIS in Vermont informing them of the divorce after it was finalized. I was still living with my ex-wife even after it was finalized because I was looking for a place to move into. I updated my address on their website once I moved out. I never knew if they got my letter though, I assume they did because I sent it with guaranteed mail.

[ApplyingforN400 126]

23 minutes ago, Deagle said:

After reviewing my archived letters and documents, I realized that I actually sent a letter to the USCIS in Vermont informing them of the divorce after it was finalized. I was still living with my ex-wife even after it was finalized because I was looking for a place to move into. I updated my address on their website once I moved out. I never knew if they got my letter though, I assume they did because I sent it with guaranteed mail.

There was a case here on VJ (look it up) after the person got their greeb card, 6 days later they recieved a letter informing them they are opening the file again and revoking the card because there was divorce proceedings going on.

 

Maybe they sent such letter to your ex wife after you moved?

 

All in all, you can expect this to come up if you file for citizenship, or it might not. No way to know how they see it until then. 

[Abby2018 4]

@Damara I want to give update regarding my process. My lawyer eventually send the letter to USCIS regarding my divorce proceedings and requested my case be switched to waiver. However after couples of weeks he called them to confirm if the latter was received by them and action as been taken. He was told to wait for response in the mail in few days. Couple of days later the letter was received and they stated “ provide documentation of the divorce filled the officer reviewing your case will make appropriate changes when adjusting your status” they say they might request for more evidence if needed and the copy of the divorce will be forwarded to my file. I have kind of confused if this's a good sign. Thank you every one