Applied for I-751 and now we are almost divorced :-(

[Texas2016 18]

Good morning everyone,

 

my husband and I filed jointly for the I-751. At the end of this month, we will have our court date for our divorce. I am sad, stressed and anxious. Since we were still married on January 1st, 2019, we were thinking that we have to file our taxes together, however I just found out that we could also do our taxes as married filing separately. I do not know what would be best to do from an immigration point of view. Once I have the divorce decree, I will send that to USCIS together with an affidavit from a mutual friend, a letter from me explaining what is going on and a letter from out marriage counselor. Do you guys know what would be best to do in regards to filing taxes and if I should add any more documents to the second package I am sending?

 

In the initial application, I included loads of pictures, shared bank accounts / credit cards, mortgage, apartment lease etc.

 

Let me know. Thanks everyone for your help in advance.

Edited February 18, 2019 by Texas2016

[Kastrs 723]

Do whatever you prefer with your tax situation, it should have no impact on your case as you are going to use a divorce waiver 

[Texas2016 18]

On 2/18/2019 at 12:53 PM, Kastrs said:

Do whatever you prefer with your tax situation, it should have no impact on your case as you are going to use a divorce waiver 

So it does not matter whether we file together or separate?

[AftM89 158]

17 minutes ago, Texas2016 said:

So it does not matter whether we file together or separate?

I’m in the same boat as you I did the I-751 married but we heading to divorce and filed my taxes separately it won’t be an issue I guess...let’s keep our fingers crossed

[Texas2016 18]

Everyone, I went to an immigration lawyer today and he confused me so much.

 

I was under the impression that I always needed to inform USCIS of any status change such as a divorce even if I was still married at the time of applying for the I-751 form, however this lawyer is saying I should just not do anything and wait for my greencard unless they send me an RFE cause they found out about the divorce. We can then deal with it and send them the divorce decree. I do not understand, this was not what I got from Visajourney or people with similar experiences.

 

Also, he is saying that I should start the application from scratch, because of my name changing back to my maiden name. I thought I could request for this to be changed on my greencard when I send them the divorce decree and if they will not do it, I can pay for a new greencard once I got it. Could someone please help and advice, because I am so confused.

[xillini 71]

38 minutes ago, Texas2016 said:

Everyone, I went to an immigration lawyer today and he confused me so much.

 

I was under the impression that I always needed to inform USCIS of any status change such as a divorce even if I was still married at the time of applying for the I-751 form, however this lawyer is saying I should just not do anything and wait for my greencard unless they send me an RFE cause they found out about the divorce. We can then deal with it and send them the divorce decree. I do not understand, this was not what I got from Visajourney or people with similar experiences.

 

Also, he is saying that I should start the application from scratch, because of my name changing back to my maiden name. I thought I could request for this to be changed on my greencard when I send them the divorce decree and if they will not do it, I can pay for a new greencard once I got it. Could someone please help and advice, because I am so confused.

Depending on how a lawyer values,

it can be recommended to inform USCIS that you are now separated, or recommended not to provided anything until USCIS obtains your separation. It is risk management that you as a client should be aware.

 

I will go with IF Scenario, hope you bear with me. 

 

If you choose to inform USCIS that you are now separated,

then the chance is that USCIS will be mindful when making determination on your I 751 albeit there is a chance that your submission may not be reached to the ISO who is making determination on your case on time. This is probably the best case, where a ISO determines you deemed to be bona fide marriage and approve your case while your submission to USCIS is not delivered to the ISO on time or even lost, meaning that you did show your proof of burden, and it is USCIS's fault for failure of your submission to the assigned officer who approved your case. 

        If your information is correctly delivered to the ISO who was assigned for your case and the ISO took this information into account, then it is still safe to assume that USCIS viewed your case as a legitimate marriage when entered, and therefore it won't hurt potential hurdle N400 in the future if your final goal is N400. 

 

However, as of 2019, when you submit I 90 to renew your green card, USCIS will not review your case, but if later USCIS decides to review how an applicant obtains Green Card initially during I 90, then it can be another issue even. To give you a background, you will need to submit I 90 in 10 years since green card has only 10 years validity, and the process is I 90. Right now USCIS does not review how one obtains green card, but just issue renew green card upon receipt (and around 6-8 months waiting time). Arguably, there is a chance that USCIS will start to review how one obtains green card during I 90 in the future, and then start to ask questions why and how an applicant obtains, and if things are not cleared, it can be great challenge, considering USCIS does not have unified policy, but depends on each individual ISO's background and life philosophy albeit immigration by nature is very flexible and it is hard to enforce a unified policy.

 

 

Another option you can do is, 

if you choose not to inform to USCIS (such as your lawyer recommended), there is 50/50% chance USCIS might be aware of your separation. 

 

If USCIS is aware of your separation by whatever means they have, the chance is you will be requested RFE that you must respond back within the time frame. Then it goes from there.

If you have strong case, you may be approved, but if not, the chance is that you will likely to be requested more rigorous review, and potentially in-person interview. So that is what your lawyer meant by "If USCIS issues a RFE, we will do something, but if not, we will just be silent and just enjoy the benefit of doubts". 

 

Another if is that

if USCIS approves you without knowing that you are separated, then it can be a little bit issue during N400 (after 5 years of CG anniversary, you can apply for citizenship) if your final destination is to become a USC that you will likely to get questioned since during N400, you would need to submit whether or not you are married, and divorced before, and all documentations with time stamp, and if it is a shrewd USCIS officers who are familiar with I 751 and N400, then question goes back to how you obtain GC initially, and further determine if your marriage was legitimate or not during N400. 

 

In the past, USCIS did not care how an applicant initially obtained GC, but around 2010s, all ISOs are required to review how an applicant acquired GC during N400 review, so the chance is that they will start to wonder why you did not submit the information on your current separation since they can verify with time stamped documentation. 

 

So hope it helps and, you as a client, should be able to make choice. Like I said, it is your risk management that you might want to take or not. 

Depending on specifics of the case, you can choose differently, and therefore no body can choose except you. Best luck

[Texas2016 18]

48 minutes ago, xillini said:

Depending on how a lawyer values,

it can be recommended to inform USCIS that you are now separated, or recommended not to provided anything until USCIS obtains your separation. It is risk management that you as a client should be aware.

 

I will go with IF Scenario, hope you bear with me. 

 

If you choose to inform USCIS that you are now separated,

then the chance is that USCIS will be mindful when making determination on your I 751 albeit there is a chance that your submission may not be reached to the ISO who is making determination on your case on time. This is probably the best case, where a ISO determines you deemed to be bona fide marriage and approve your case while your submission to USCIS is not delivered to the ISO on time or even lost, meaning that you did show your proof of burden, and it is USCIS's fault for failure of your submission to the assigned officer who approved your case. 

        If your information is correctly delivered to the ISO who was assigned for your case and the ISO took this information into account, then it is still safe to assume that USCIS viewed your case as a legitimate marriage when entered, and therefore it won't hurt potential hurdle N400 in the future if your final goal is N400. 

 

However, as of 2019, when you submit I 90 to renew your green card, USCIS will not review your case, but if later USCIS decides to review how an applicant obtains Green Card initially during I 90, then it can be another issue even. To give you a background, you will need to submit I 90 in 10 years since green card has only 10 years validity, and the process is I 90. Right now USCIS does not review how one obtains green card, but just issue renew green card upon receipt (and around 6-8 months waiting time). Arguably, there is a chance that USCIS will start to review how one obtains green card during I 90 in the future, and then start to ask questions why and how an applicant obtains, and if things are not cleared, it can be great challenge, considering USCIS does not have unified policy, but depends on each individual ISO's background and life philosophy albeit immigration by nature is very flexible and it is hard to enforce a unified policy.

 

 

Another option you can do is, 

if you choose not to inform to USCIS (such as your lawyer recommended), there is 50/50% chance USCIS might be aware of your separation. 

 

If USCIS is aware of your separation by whatever means they have, the chance is you will be requested RFE that you must respond back within the time frame. Then it goes from there.

If you have strong case, you may be approved, but if not, the chance is that you will likely to be requested more rigorous review, and potentially in-person interview. So that is what your lawyer meant by "If USCIS issues a RFE, we will do something, but if not, we will just be silent and just enjoy the benefit of doubts". 

 

Another if is that

if USCIS approves you without knowing that you are separated, then it can be a little bit issue during N400 (after 5 years of CG anniversary, you can apply for citizenship) if your final destination is to become a USC that you will likely to get questioned since during N400, you would need to submit whether or not you are married, and divorced before, and all documentations with time stamp, and if it is a shrewd USCIS officers who are familiar with I 751 and N400, then question goes back to how you obtain GC initially, and further determine if your marriage was legitimate or not during N400. 

 

In the past, USCIS did not care how an applicant initially obtained GC, but around 2010s, all ISOs are required to review how an applicant acquired GC during N400 review, so the chance is that they will start to wonder why you did not submit the information on your current separation since they can verify with time stamped documentation. 

 

So hope it helps and, you as a client, should be able to make choice. Like I said, it is your risk management that you might want to take or not. 

Depending on specifics of the case, you can choose differently, and therefore no body can choose except you. Best luck

Hi Xillini,

 

thank you so much for assisting me with this. My original plan was to send over the divorce decree to the USCIS since the DMV and the Social Security Office are also already aware of this. I was going to attach a letter in which I request to change my application to a waiver one and I have an affidavit letter from my ex-husband and a really good mutual friend in which they state what happened etc. I will most likely also have another affidavit from his mother and one other friend.

 

In my letter, I would also include a request to change my name on the card.

 

What do you think?

 

I heard if you do not tell USCIS in time, it will be considered fraud.

 

Kind regards,

 

Texas2016

[Texas2016 18]

Anyone else have thoughts about it? I really need advice whether my original plan is good.

Edited March 1, 2019 by Texas2016

[Texas2016 18]

@username_takendo you have any thoughts about it?

[Villanelle 4,122]

There are many posts about this on VJ- you can use the search feature or even just go to my profile and see my content as I tend to comment on most of the threads! lol

 

Anyway, re-taxes: USCIS does not care if you file MFJ or MFS the key is to show you filed married. Married jointly, married separately- thats your prerogative based on whats best for you. You dont want to file single when you are legally married because then you are making a statement to a government agency (IRS) that you are single when you are not. Not a good idea even when immigration isnt involved. 

 

When did you originally file the 751? Processing times are around 1yr mark. The longer ago you filed the more likely it is they are going to get to your case in the near future. It seems you got your card 12/16 so it would expire 12/18--- so you just recently filed right?? It also sounds like a very amicable divorce which gives you another option as well. Also how long does it take on average to get your final decree in your court? That also impacts what paths you can take.

 

Since you filed a joint petition technically you can be approved on the joint petition as long as your spouse chooses to remain on it AND you are still legally married. Once the divorce decree is issued you MUST use the waiver. It seems you want to change your name back to maiden name as well the court date and decree probably being issued before they get to your case- so Im going to say you most likely will need or want to switch to the waiver.

 

When you send the letter requesting to switch to the waiver you do not actually fill out a new form or pay another fee. Its just a basic letter asking to switch. In the letter you can ask for your name to be changed. Usually USCIS will change your name. However if you wait until the last moment to tell them you are switching (like in a joint interview where only you attend with the decree) sometimes they say it is too late to make the change. In those cases unfortunately you have to then pay the 600$ or so to get a new card and wait a very long time for it in the mail.

 

When you send your request to switch to a waiver you can take advantage of it and include any new or additional evidence. Please remember when you switch to a wavier your ex spouse is no longer involved in the process but IF you send an affidavit from him then you are opening the door for them to reach out to him to verify the contents of what he submitted. It is very unusual for them to do this unless they have suspicions or stuff just isnt adding up. But its important to understand by sending a statement from him you are opening that door that otherwise would be closed. Sometimes divorce starts out amicable and then turns sour. Maybe you move on to a new relationship right away and the other person doesnt like that. Who knows. Do what you think is best in your heart. You know your situation better then anyone. Affidavits carry very little weight generally speaking. 

 

The main thing is to NOT have them get to your petition and process it before you give them the final decree. As I said its totally fine for them to approve you with no interview on the joint petition while you are in divorce proceedings AS LONG AS the decree has not been issued. Depending on the timing some people notify USCIS of the separation, in other cases you can wait until you have the decree because processing times makes it unlikely they will approve your petition after the decree has been issued but before you are able to send it to them.

 

When you notify them - if you just notify them of the divorce but do not include the decree, they will send an RFE (87 days response time) asking for the decree. If you still dont have it you answer the RFE that you dont have it yet and they will schedule you for interview. Hopefully you have the decree by that time. The RFE for the decree does not come instantly. USCIS is very slow. You send your letter and it goes through the mail room and around and around until it ends up in your file and then someone has to actually read the letter and send you the RFE.

 

If you send a notification that includes the decree they will just continue processing your case as a waiver and may or may not interview you. Its more likely for divorce cases to get interviews mostly because they dont have the decrees on time, but for those that do send it- getting an interview or not can go either way. 

 

Re what the attny said- Immigration law is very complex and often there are multiple paths to the same outcome. Part 1- You should not need to file a whole new packet to change your name- however nothing in the law dictates USCIS to change your name on the packet you sent- its just something they typically do if you ask when asking to switch to a waiver.  To be 100% sure they change your name you can send a new 751 form however I personally think its a waste of money for that 100% assurance because very very few people are denied their requests to go back to the maiden name and its usually those who wait until the interview to ask to change the name that are told no.

 

Part 2- Again, USCIS can approve the joint 751 as long as spouse does not withdraw from it and you are still legally married. Some attnys do not recommend even telling USCIS about the pending divorce because when USCIS finds out about it (and the only way they find out is if you or your spouse tells them, they do not scour court records looking for this)- but when USCIS finds out about it they will ask if you want to switch to a waiver- the letter actually reads more like you have to switch but you dont. And once that RFE asking about the decree is sent out their process starts and if you do not have the decree you can end up in court which is a big mess but totally doable. 

[Texas2016 18]

Hi @username_taken. Thank you so much for your long explanation. It really means a lot!

 

Just to respond to what you said:

 

- We ended up filing taxes together, because this was still before our divorce court date.

 

I originally filed for the I-751 on September 11th, 2018. They received it on September 13th, 2018 and they cashed the check on October 9th, 2018.
The NOA1 date is October 19th, 2018. It was an amicable divorce on most levels, because we still love each other, however it is just not possible to work things out sadly. I received our final decree on February 28th, 2019.

 

Since we are no longer married at this point, I am going to be sending USCIS the divorce decree, a letter from me explaining the situation and requesting for the change to a waiver application plus the name change. I also will include a letter from our marriage counselor and a couple affidavits. I will not actually fill out a new form or pay another fee, such as you advised.

 

I will also include our latest tax return and a couple more pictures from us from August and September of 2018. You have a great point about the fact that if I switch to a waiver, my ex spouse is no longer involved in the process, but if I include his affidavit that I am then opening up a door that I may not want to open. We are definitely on okay terms now, but you are right. It may change at some point. You never know. I do have the file with what he wrote, signed and dated in my e-mail, so if needed, I can always bring that to the interview. There should however be no doubt about our marriage, because it was as real as it gets. This one is going to take a long time to get over to be honest.

 

Since I already have the divorce decree since last Thursday, I am going to be sending it to USCIS this week. Just to be sure, I am sending this to the California Service Center, correct?

 

Thank you again so much username_taken. I really am grateful for all your knowledge and help!

[xillini 71]

On 3/1/2019 at 12:46 PM, Texas2016 said:

thank you so much for assisting me with this. My original plan was to send over the divorce decree to the USCIS since the DMV and the Social Security Office are also already aware of this. I was going to attach a letter in which I request to change my application to a waiver one and I have an affidavit letter from my ex-husband and a really good mutual friend in which they state what happened etc. I will most likely also have another affidavit from his mother and one other friend.

 

 In my letter, I would also include a request to change my name on the card.

 

What do you think?

 

I heard if you do not tell USCIS in time, it will be considered fraud.

 

Personally, I would still send the cover letter detailing why marriage fall apart and supporting documentation such as divorce decree. 

Living in America, no body wants to take the risks (I learned it hard way), and USCIS, as one of the stringent and conservative government institution, hates those kind of uncertainty and risks. 

 

While I do not agree with "fraud" if one does not send the new updates in marriage, this is too risky especially given that you already notified DMV and SSA, where it is likely that USCIS will access the information, meaning that USCIS will be aware that you are separated and the question goes to why there is no updates, narrowing down that this can be potential fraud. 

 

On the mean time, what your lawyers recommend also makes it sense. If USCIS does not know you are separated, why bother? 

 

But again in your specific case, I would still send since it sounds you have strong case such as affidavit from your ex's family member

If you have documented therapy session, that will seal the deal with cover letter. Because USCIS recognizes that marriage not always succeed, if applicant shows reasonable efforts to save the marriage, it will convince ISOs a lot if you have. 

 

Hope the best luck, and please updates it later. 

 

 

There are arguably 

[Texas2016 18]

Good evening Xillini,

I really appreciate it and I will keep everyone updated.

Have a good rest of your day.

 

Texas2016

[Texas2016 18]

Does anyone know where I need to send my documents? I originally send it to the California Service Center, however on my 18-month extension I-797 letter it lists the Texas Service Center.

[Villanelle 4,122]

You should send it to wherever you filed originally... However if you know (or suspect) your case has been moved it cant hurt to send a duplicate mailing to that service center as well. Just make sure you include certified copies of divorce in both mailings. Use a tracking number as well.