Can USC withdraw joint ROC ? (merged)

[HappyAndIKnowIt 24]

I had not considered going down this route, but I would like to know whether, after joint filing an I-751 to Remove Conditions, can the USC spouse withdraw the filing ?  I understand spouse can file with a divorce waiver, but I want to know if I could withdraw the joint filing.  I'm wondering if there was fraud, and if so, whether and how I would deal with it.

 

Am I correct that I locked myself in to the Affidavit of Support at the Adjustment of Status phase ?

 

edit:  I think I may have found the answer.  It seems that divorcing spouse will file a new I-751 and withdraw the original as the joint can't be converted ?  I saw that on some law firm's website.  True ?

Edited September 18, 2019 by HappyAndIKnowIt

[mushroomspore 3,044]

You can't withdraw the I-864 since AoS was approved. Divorce does not relinquish your obligations if the immigrant ever becomes a public charge. In case of divorce during RoC, you have no real power over the adjudication because immigrants are allowed to submit divorce decrees and waivers to USCIS and most divorced immigrants are approved for RoC. In terms of fraud, it depends. Do you have hard evidence of it? If not, then there isn't much you can do.

[geowrian 22,337]

You can request a withdrawal, but effectively it means they should be presented with option to do a divorce waiver instead (no new I-751 required). At that point, you're completely out of the picture with regards to her immigration process. You are still on the hook for the I-864, though.

If there was fraud and you have actual evidence of it, you can report it to USCIS. They may or may not do anything about it.

[SalishSea 17,827]

What happened with the attempt an an extension for the MIL's tourist visa?

[HappyAndIKnowIt 24]

9 hours ago, Jorgedig said:

What happened with the attempt an an extension for the MIL's tourist visa?

The latest is that the USCIS Case Status website shows 'Fingerprint Review was Completed' on Aug. 24.

 

The Receipt # starts with LIN, but the above webpage shows it is being processed at the National Benefits Center.  The 'Outside Normal Processing Time' has passed on both locations.

 

Today was the scheduled return flight which they submitted as evidence MIL would return within the requested six months.  They canceled that ticket last week and submitted another extension request.

 

Officially, nothing has happened yet.  But, I don't see any reason for the transfer or why it takes over 3 weeks to process after fingerprint review, unless it is being actively investigated.  I suspect they might have been waiting for either today or the end of the requested six months to see if she actually left.  So, I think something is going to happen on it within the next couple of weeks, and by that I don't mean an approval.  If it were going to be approved, it would have been more straightforward.  Any amount of looking into this case will result in rejection, at a minimum.

 

So... if USCIS finds her intent when she originally came was to help with the baby, in other words, some invalid use of the visa, would they consider her entire stay as out of status ?

[HappyAndIKnowIt 24]

10 hours ago, mushroomspore said:

You can't withdraw the I-864 since AoS was approved. Divorce does not relinquish your obligations if the immigrant ever becomes a public charge. In case of divorce during RoC, you have no real power over the adjudication because immigrants are allowed to submit divorce decrees and waivers to USCIS and most divorced immigrants are approved for RoC. In terms of fraud, it depends. Do you have hard evidence of it? If not, then there isn't much you can do.

 

10 hours ago, geowrian said:

You can request a withdrawal, but effectively it means they should be presented with option to do a divorce waiver instead (no new I-751 required). At that point, you're completely out of the picture with regards to her immigration process. You are still on the hook for the I-864, though.

If there was fraud and you have actual evidence of it, you can report it to USCIS. They may or may not do anything about it.

 

I read some conflicting things about the RoC and whether it can be converted.  I think they changed how they handled that at some point.  I was pretty sure the AoS locked in at the ... AoS approval.

 

As for fraud, I had not thought there was, but I am looking at all possibilities now.

 

So, with the waiver and the requirement to include the divorce decree, (I'm not sure what all is included in a divorce decree) does USCIS only want to see there was a divorce or are they looking for details within the decree, such as findings by the court which might be evidence of a fraudulent marriage ?

 

Again, this fraud part is new territory for me - I'm just starting to consider various aspects to put the story together.  This whole divorce doesn't make sense in any normal sense of what we think of causes for divorce.

[mushroomspore 3,044]

8 minutes ago, HappyAndIKnowIt said:

 

 

I read some conflicting things about the RoC and whether it can be converted.  I think they changed how they handled that at some point.  I was pretty sure the AoS locked in at the ... AoS approval.

 

As for fraud, I had not thought there was, but I am looking at all possibilities now.

 

So, with the waiver and the requirement to include the divorce decree, (I'm not sure what all is included in a divorce decree) does USCIS only want to see there was a divorce or are they looking for details within the decree, such as findings by the court which might be evidence of a fraudulent marriage ?

 

Again, this fraud part is new territory for me - I'm just starting to consider various aspects to put the story together.  This whole divorce doesn't make sense in any normal sense of what we think of causes for divorce.

The AoS is locked in unless the agency decide to investigate and their investigation determines the immigrant should never have received immigration benefits in the first place. This happens but rarely.

 

Not sure where you heard they "changed" how they handle RoC. Permanent residents may convert joint RoC filings with a divorce waiver if they end up divorcing their US spouse/petitioner. This has always been an option and has not changed. In terms of what USCIS looks for in the divorce decree, all they care about for the most part is that the marriage is completely and legally over. 

 

As for the fraud, they only start looking at that if THEY decide there is enough preliminary evidence to initiate an investigation, which costs a lot of money and manpower. So unless you have HARD evidence of it, you're wasting time and energy trying to pursue it. 

[HappyAndIKnowIt 24]

3 minutes ago, mushroomspore said:

The AoS is locked in unless the agency decide to investigate and their investigation determines the immigrant should never have received immigration benefits in the first place. This happens but rarely.

 

Not sure where you heard they "changed" how they handle RoC. Permanent residents may convert joint RoC filings with a divorce waiver if they end up divorcing their US spouse/petitioner. This has always been an option and has not changed. In terms of what USCIS looks for in the divorce decree, all they care about for the most part is that the marriage is completely and legally over. 

 

As for the fraud, they only start looking at that if THEY decide there is enough preliminary evidence to initiate an investigation, which costs a lot of money and manpower. So unless you have HARD evidence of it, you're wasting time and energy trying to pursue it. 

Probably this.

https://www.shanelaw.com/uncategorized/november-1-2010-what-affect-does-divorce-have-on-jointly-filed-i-751-petition/

 

About the hard evidence, I'm not going to devote any energy to her immigration situation.  I did with MIL, but that was necessary.  But, if the divorce uncovers things that USCIS would be interested in, I might forward them.  If I believed my wife wouldn't continue to do everything she can for the next 18 years to take my son out of the country, I would have no interest in her negatively affecting her status.  As it is, it is only a possible means to protect my son, and my sanity.

[carmel34 3,626]

Because you have a son together, and it sounds like you want to be a part of his life, I suggest that you focus on the divorce and negotiating the best settlement and co-parenting arrangement that you can, maybe find a good divorce attorney who specializes in negotiated settlements and not long expensive court battles.  Preserve all the goodwill that you can and hopefully you can live in the same city and be good parents to your son despite the divorce.  Let her deal with the immigration issues but I would say be as supportive as you can be so that you can continue to have a good relationship for the sake of your son.  Good luck!

[Villanelle 4,122]

I understand the whole keep your friends close and enemies closer thing that is going on here- but you have to step back and try to not obsess over MIL immigration stuff. 

 

No, it is not odd for processing to take a long time. Yes, some people who try to apply for B extensions spend a lot of time waiting and it ends up getting denied and all that waiting is now held against them. Thats why its never a good idea to try for a B extension if doing so would put you into the land of overstay. 

 

Im assuming you already put a block on your child getting a passport/ if they have one putting a block on it to ensure they are not taken out of the country with out your consent. And honestly thats all you can do.  Family courts do NOT take into account peoples immigration status or lack thereof. 

 

Also you are bound by the 864 once the GC was approved. Can not be undone- you will have to wait for her to have enough credits or become a USC. Re- ROC: A joint filing can be withdrawn by either spouse. If USCIS gets a withdrawal request on a joint ROC they are suppose to RFE the alien and ask if they want to switch to the divorce waiver. This doesnt always happen though. Sometimes USCIS accepts the withdrawal and closes the ROC out- if that happens the alien simply has to refile with a waiver. 

 

USCIS will also want the final divorce decree. In most states this is a multi page document that outlines who filed/what went on/final outcome in brief terms. If there is any wording of "fraud" in it- they will see it and it will be a bad thing for the alien. This is why aliens are advised to not have any mention of fraud in the divorce and to fight if the spouse tries to get fraud wording into it. 

 

So you are free to try to work "fraud" into the divorce as a reason but she will probably fight it if she is informed in immigration matters. You can also send the complete decree as well as any other back and forth divorce paperwork you have when you have it. You will want to find a "shark" divorce attny. (not a nice one). 

 

I also saw (I think) in someones response somewhere to you a mention of domestic violence? was that her against you or you against her? (If she files ROC under abuse waiver and is approved and you are a USC she can become a citizen at 3yrs)

 

If theres anything you need advice on and do not want to post it publicly feel free to PM.

[HappyAndIKnowIt 24]

10 hours ago, Villanelle said:

I understand the whole keep your friends close and enemies closer thing that is going on here- but you have to step back and try to not obsess over MIL immigration stuff. 

 

No, it is not odd for processing to take a long time. Yes, some people who try to apply for B extensions spend a lot of time waiting and it ends up getting denied and all that waiting is now held against them. Thats why its never a good idea to try for a B extension if doing so would put you into the land of overstay. 

 

Im assuming you already put a block on your child getting a passport/ if they have one putting a block on it to ensure they are not taken out of the country with out your consent. And honestly thats all you can do.  Family courts do NOT take into account peoples immigration status or lack thereof. 

 

Also you are bound by the 864 once the GC was approved. Can not be undone- you will have to wait for her to have enough credits or become a USC. Re- ROC: A joint filing can be withdrawn by either spouse. If USCIS gets a withdrawal request on a joint ROC they are suppose to RFE the alien and ask if they want to switch to the divorce waiver. This doesnt always happen though. Sometimes USCIS accepts the withdrawal and closes the ROC out- if that happens the alien simply has to refile with a waiver. 

 

USCIS will also want the final divorce decree. In most states this is a multi page document that outlines who filed/what went on/final outcome in brief terms. If there is any wording of "fraud" in it- they will see it and it will be a bad thing for the alien. This is why aliens are advised to not have any mention of fraud in the divorce and to fight if the spouse tries to get fraud wording into it. 

 

So you are free to try to work "fraud" into the divorce as a reason but she will probably fight it if she is informed in immigration matters. You can also send the complete decree as well as any other back and forth divorce paperwork you have when you have it. You will want to find a "shark" divorce attny. (not a nice one). 

 

I also saw (I think) in someones response somewhere to you a mention of domestic violence? was that her against you or you against her? (If she files ROC under abuse waiver and is approved and you are a USC she can become a citizen at 3yrs)

 

If theres anything you need advice on and do not want to post it publicly feel free to PM.

Awesome info.  Thanks !!

 

I didn't know I could put a block on my child obtaining a passport.  I knew I could sign up to get notified.  My understanding of the rules is that both parents' consent is required, short of full custody, so the lack of those two things is what I have been banking on.  I'll check into this again, based on what you said.

 

There are pending charges of Domestic Violence and Assault against her,.  She hit me.  In front of our son.  Multiple times.  On video.

 

About the fraud, I'll give my attorney everything and let him decide the best strategy for trial.  He's good and very well respected.  He's already 'outmaneuvered' her attorney to my benefit more than once.

[mtempelaar 190]

This may be helpful for you:  https://travel.state.gov/content/travel/en/passports/legal-matters/custody.html

[HappyAndIKnowIt 24]

5 hours ago, mtempelaar said:

This may be helpful for you:  https://travel.state.gov/content/travel/en/passports/legal-matters/custody.html

Thanks.  That was helpful.  I completed the notification / refuse consent form and sent it on its way.

 

I read on that form that the U.S. does not prevent my son from traveling out on a Ukrainian passport, which I don't think is a problem for my wife to get without me, so that is a problem.  One more threat I have to neutralize.

[Villanelle 4,122]

21 hours ago, HappyAndIKnowIt said:

Thanks.  That was helpful.  I completed the notification / refuse consent form and sent it on its way.

 

I read on that form that the U.S. does not prevent my son from traveling out on a Ukrainian passport, which I don't think is a problem for my wife to get without me, so that is a problem.  One more threat I have to neutralize.

You have to contact the Ukrainian Embassy and find out if there is anything you can do. Besides that the only other thing you can do is push for supervised visitation - 

[HappyAndIKnowIt 24]

On 9/21/2019 at 5:51 PM, Villanelle said:

You have to contact the Ukrainian Embassy and find out if there is anything you can do. Besides that the only other thing you can do is push for supervised visitation - 

Yep.  I've already forwarded the information to the relevant attorneys in the divorce.