i751 divorce waiver with no divorce finalized yet

[Villanelle 4,122]

Ok you need to relax. 

 

FIRST- there is no threat with 'running out of time" for immigration. Yes, there are deadlines but there are also policies for when you cant meet the deadlines. People have had 751 waiver cases 'on hold' waiting for a divorce for YEARS. And USCIS is totally fine with that. So forget the time issue. Its N/A.

 

Basically what happens is you send your 751 in with out the final decree. USCIS will (eventually) send an RFE for it. If you do not have it-you dont have it and you tell them so. If you have it you send it in. They will then review what you sent (or didnt send) and if you sent it and can be approved w/o interview you will be approved. If you send it and they choose to interview you for some reason you'll get an interview letter. If you dont send it they WILL send you an interview notice months in advance of said interview. If you get the final decree before the interview bring it with you to the interview and get approved. If you STILL dont have it they will technically deny your ROC and send you to immigration court. You still are an LPR and can work and travel. The judge will (after months of waiting for a slot in court to open) ask you for your decree. If you have it you give it to him and he sends the case back to USCIS to process/approve. If you still dont have it he will give you AS MUCH TIME AS YOU NEED to obtain one. 

 

So dont worry about getting the divorce done quickly. Worry about getting it done RIGHT. In most jurisdictions if one spouse was abused the Judge can order 'punishment' in form of property or assets against the abuser. Has your attny included the abuse in the divorce? 

 

As for filing the 751 you are close to your deadline so you have to make some decisions. Its entirely up to you how to file. You can file as 'divorced' (and you seem to have sufficient evidence to get approved that way) you can file as abused under 'extreme cruelty' (which you also have significant evidence of) or you can check both divorce and extreme cruelty.

 

Keep in mind what ever you select you have to prove. So if you choose 2 types you have to prove both types. (for filing under abuse only you do not need to be divorced). Also if you are approved under extreme cruelty you are eligible for naturalization at 3 yrs. 

 

If you are considering filing under abuse (many people do check both boxes because they do not have enough bonaifde evidence due to the abuse. In those cases they will take into account the abuse as a reason why joint documents are missing. You dont fall into that case). but anyway if you are considering filing under abuse check out the VAWA thread and other threads on VJ with tagwords abuse/751/waiver/extreme cruelty.

 

Most people include an affidavit detailing the abuse along with psych papers and medical reports. If your attny is not well versed in abuse waivers you can find another one who is. There are also probono services (use search feature) that will help with abuse waivers. 

[ST52 8]

Thank you, Damara, for yet another comforting feedback, and I really appreciate the way you explained the ROC process in detail! To answer your questions

 

• My divorce attorney told me that abuse won't affect my divorce as my state is an equitable distribution state and since it was not physical abuse and no police was involved judge won't weigh it. Also, the state is purely no-fault divorce state so no other grounds can be highlighted in the process as well.
• I have given 14 pages of detailed relationship to my attorney with 11 pages of how abuse happened with details and corroborating psychological evaluations as well. I get your point of why divorce waiver makes more sense as I do have sufficient evidence. Believe me, I have more but she made sure that she is not leaving any behind by taking the laptop, photo albums and my evidence files.

The reason I am thinking that my immigration attorney is defensive is because he told me that with the evidence I have USCIS is just going to think of it as a bad marriage and not extreme mental cruelty. I really doubt his statement and have even told him but he said I agree with you but it also depends hugely on the IO who will be adjudicating your case. He also mentioned that cruelty waivers are hard to prove and with the evidence that I have a divorce waiver should not be a big problem. I have told him that I am suffering from PTSD with doctor and psychiatrist both corroborating it but he seems to move forward with less to prove as according to him cruelty waivers are difficult to prove.  He is also my divorce attorney so I don't know if I can change him right now but I will be meeting him next week to go over cruelty waiver possibility again. I will also look on the VJ community to see the type of evidence that is good for cruelty waivers. If you know a case please share it too, and I will keep my progress posted as things move forward. My question is

 

1. Are cruelty waivers to difficult to prove?

2. Is the involvement of police report always needed for these cases to be successful? Or medical records, psychological evaluations, mental illness diagnosis and circumstantial evidence enough as I listed in my post?

3. She is also asking for alimony as marriage until the day of separation lasted for 3.5 years, do you think she will get it? She was working and left her job intentionally to move to another state and staying with her family. She will be getting a considerable amount of cash as a settlement and has a bachelors degree and 28 years old. My attorney and that is what I hate the most will never give a straight answer as he said don't worry its not that case as marriage is not long enough but I can't guarantee as this judge is biased towards men. 

 

Thank you!

[Villanelle 4,122]

That makes no sense. Equitable distribution does not mean “equal” division – it means “fair” division. What state are you in? Have you googled basic divorce info for your state? Also I dont know about using the same attny for divorce and immigration. Usually its better to have an attny that specializes in each field. 

 

Like I said its up to you how you want to file ROC. If you are going to file under abuse then your affidavit is way too long. Your combined statement of the relationship and abuse should be around 10 pages. No one can/wants to read 25+ pages. 

 

I suggest you send a PM to the user Sandranj and keep it simple. Tell her your ROC is due very soon and ask her if she will review your condensed statement and look at your psych report. Sandra is a VAWA attny and will tell you honestly if you have a case or not. She gets lots of messages so keep it simple, polite and ask if she can review your stuff before you send it to her.

 

Cruelty waivers are not that difficult to prove if you have the correct evidence. From what you posted it seems you have enough but you really need someone like Sandra to read your psych reports and statements to tell you if USCIS will consider it bad marriage or abuse. No you dont need a police report. Police reports are needed if there was physical abuse. For mental abuse you need the psych statement and again someone like Sandra would be able to evaluate your reports.

 

I have no idea if she will get alimony. Google your state and see if its common. Typically for a short marriage there is none. 

[ST52 8]

Thanks for the reply. I have requested Sandra, and will wait for her reply to provide her with evaluation. 

 

The state is Michigan, and alimony laws are not in black and white as Judge can decide on whatever he feels reasonable. Google and my lawyer say the same thing there is no calculation formula for it and like you mentioned "equitable" as fair distribution, my attorney told me that courts hardly move from 50/50 split of property unless there is adultery, abandonment and marriage is long term. According to my attorney, minor faults are not taken into account like emotional abuse, mental cruelty and again is largely up to judge. I have experienced what he told me in the motion that I mentioned where the judge didn't care about an immigrant going out of status. There is a large disconnect, and I will keep the forum posted as my next date is approaching in the last week of July. 

 

 

[AlexNY 9]

I filed I-751 when my divorce was still in process. It was finalized in 4 months after I filed. USCIS sent me RFE in a year asking for divorce decree. You don't have to worry about removing conditions. You have plenty of evidence. File your I-751 now. Good luck with your divorce process. I hope you'll be able to get your money and valuables back. At least half of it.

[Villanelle 4,122]

I dont know if you should view the judges attitude about your immigration matter as him having bias towards you. Family court does not care about ones immigration status. You can be an illegal and still have the same rights as a USC in family court. Your immigration matter is not a reason to expedite in family court. 

 

Hope Sandra is able to give you some kind of opinion so you can make an educated decision on how to apply.

[ST52 8]

@AlexNY Thank you for sharing your story, much appreciated! Can you share your timeline?

 

 

Yes, Damara, you are right. I am waiting to hear back from Sandra, will keep you posted. Thanks!

Edited July 8, 2018 by ST52

[AlexNY 9]

On 7/8/2018 at 2:01 PM, ST52 said:

@AlexNY Thank you for sharing your story, much appreciated! Can you share your timeline?

Here it is

- Feb 2017: filed I-751 to VSC

- March 2017: biometrics

- Feb 2018: RFE - divorce decree

- May 8 2018: transfer to NBC

[ST52 8]

@AlexNY Thank you for providing your timeline.

 

@DamaraSandra has replied and is of the same opinion that it is going to be considered a bad marriage instead of abuse as the psychiatrist wasn't able to highlight details that I gave her and the circumstances surrounding my situation. I agree with Sandra on that as events related to abuse are not discussed in detail and are high level. I am going to file with divorce waiver, my attorney is going to try one more time to reach to a settlement so that divorce can be finalized. Otherwise, if that is what she wanted a contested divorce then so be it, will go by her rules and packet will be sent without divorce decree. I will not be surprised if she refuses a settlement, as right now her family and she thinks that dragging the divorce will put me out of status. I am going to file without a divorce decree and then wait for RFE as explained earlier to proceed with the process. Will keep VJ posted. Thanks!

[ST52 8]

USCIS has updated the following policies along with the extension letter now for 18 months instead of 12 months. It is clear that USCIS is making policies strict and now the authority to deny the case without sending out RFE will effect divorce cases more because of the timeline in some states to get divorced. 

 

 

AFM_10_Standards_for_RFEs_and_NOIDs_FINAL2.pdf

i797 extension.pdf

NTA Memo 2018.pdf

 

Please share your thoughts forum.

Edited July 20, 2018 by ST52

[ST52 8]

Hi everyone,

 

Just to inform that my divorce was finalized in the last week of July, of course on her terms, and I submitted my i751 packet on July 30. USCIS CSC received the packet on Aug 01, 2018 but they haven't cashed the check so far. I am out of status now as when I filed I was still 3 weeks away from the expiration of conditional green card, but now I don't have NOA with 18 months extension. Can someone tell me of any way to expedite the process to receive the extension? It has been 3 weeks since CSC has received the packet, what should i do?

[Russ&Caro 1,549]

Have you created an account here yet?

https://myaccount.uscis.dhs.gov/

 

If not, do so. From your dhs account site you will see all of the applications you have filed, even the ones that are closed. You'll probably see evidence of NOA here before you see it in your local mail box.

[ST52 8]

@Russ&Carothank you so much for the information! I just created the account but it is asking for a receipt number from USCIS which I don't have to see any updates. Do you know any other information that I might be missing in order to find out the case status? Thank you again for pointing out the need for the account and I have created one!

[Villanelle 4,122]

You need to use one of your old case numbers to make the account- or wait until you get the NOA from ROC.

 

Also you are NOT out of status. I understand your GC expired. It doesnt matter. Even if they lost your ROC packet- you are still in status and you will be in status for the near future. ( basically you stay an LPR until USCIS sends you a notice they denied your ROC/you go before a judge who terminates your status)

 

Currently USCIS is very busy it seems. Many people are posting about waiting on NOAs. It can take up to 30 days for them to open it and an additional 15 days to get the NOA. This is just a rough estimation. If it passes 45 and no news post back for advice. But usually within 45 days you get the NOA or you get your packet back in the mail.

 

If your packet comes back =- its okay. You still have status. You just need to attach a letter for late filing and address whatever issue caused it to come back.

 

 

[ST52 8]

@Damarathank you again! I will keep posted and hoping that it doesn't take that long as I have few domestic work-related flights coming up. I hope that it is not a problem flying domestically with no extension in hand?