I-751 --- Get divorced or stay married?

[InhaleExhale 28]

Thank you for your reply, I appreciate your insight a lot!

  On 7/10/2020 at 3:46 PM, Villanelle said:

theres a lot of stuff posted that is IMO N/A. I could go through it and directly address why its N/A but I dont think its necessary.

Expand  

Not applicable? I do wonder what you mean is not applicable... would appreciate if you could share but of course I respect your time.

 

  On 7/10/2020 at 3:46 PM, Villanelle said:

Your ROC window opens in Feb. Your marriage is falling apart. You are wondering if it is better to remain in it to fix it or walk away now. Right?

Expand  

Not precisely right. I rather wonder if it would be needed to divorce now considering that USCIS only gives limited options and I have to watch the timeline to not end up in immi court.

So to make it accurate I would reword your sentence like this: 

My marriage has fallen apart. There is no opening to work at it at this point in time, very possibly at all. I am wondering if it is better to stay married because:

1-I am feeling that there is resistance in me emotionally to get divorced right now and I think that is just natural when relationships (in this case my first marriage) fall apart in way that is unfathomable to me.

2-I guess there is a wish in me to stay connected/bonded to him or better said to "not split/divide" because..I don't even know. I cannot comprehend that what happened actually did happen. And I am not done processing it.

On the other hand:

3-I see almost no chance for us to get back together as a happy couple, and I realize how I am saying "almost no chance" as if I still hope so. And I probably do. But that hope is just foolish and irrational.

4-considering the urgency of watching the ROC timeline and the fact that once USCIS asks for the divorce decree (in case I do file jointly but then get divorced later) and I only have 87 days to produce it, and if I can't, my understanding was that they must deny the ROC because they cannot adjudicate it and then they will send a NTA and I will end up in immigration court. I really want to avoid that.

 

  On 7/10/2020 at 3:46 PM, Villanelle said:

Around Dec your ROC window will open (its 90 days before the card expires). [...]  Based on what you posted your spouse is verbally abusive, unpredictable,  canceled therapy.

Expand  

The window opens in Feb. I wouldn't say he is verbally abusive. I tried to make this a point earlier in the topic: there was ONE incident where he was. But yes, he has become unpredictable. And he has shown me that he has limited integrity.

 

  On 7/10/2020 at 3:46 PM, Villanelle said:

You fill it out as a divorce ROC and include a letter that you dont have the decree yet. Eventually they will RFE you for it- probably months after filing, maybe sooner, maybe longer. When they do if you still dont have the final decree you respond telling them that. They will then schedule you for an interview. That will take months to happen. At the interview if you still dont have the decree then they will send your file to the court where you will get time to present it. Some places take 1-2 years to get final decrees done. 

Expand  

There is an interesting detail I have not known. Based on what you wrote I would have 87 days PLUS the time until they schedule me for the interview to produce the decree?

 

  On 7/10/2020 at 3:46 PM, Villanelle said:

You should not base your life decisions on which immigration process is easiest- that borders on fraud.

Expand  

Wow, there is no intent in me to fraud anyone. 

 

  On 7/10/2020 at 3:46 PM, Villanelle said:

If you have faith that things will get better

Expand  

I do not have faith in that. That I can say right now. Whats left is the foolish hope of a broken heart so to say, I think...

Anyways, thank you again for your reply  

[mindthegap 2,611]

  On 7/8/2020 at 7:15 PM, InhaleExhale said:

I read more through sort of similar threads here on the forum and from what I understand it looks like it would be best for me to get divorced right now also because USCIS may find it odd if we are apart and living apart but are still married...?

I hope it's allowed, tagging @mindthegap and @Villanelle to see if they could give their thought on my situation...?

Thanks so much, I really do appreciate it ❤️.

Expand  

Sorry, missed this. Your original post is too long and contains extra not necessary info  and I can’t be bothered making sense of it... so my brief summation and advice is this: 

Divorce is not a reason for I-751 denial, and this has been demonstrated in case law, and written in current USCIS policy.

Divorces don’t happen overnight...so of course there will be a period where you are living apart but still married. 
 

if you file by yourself with a divorce waiver, you can file at ANY time - it does not have to be in the 90 day window. This is specifically referenced in the instructions.

yes it may result in some additional hassle and scary letters or mention of NTAs or denials, but the fact remains you are permitted at any time until a final order of removal is made by an immigration judge (at which point you are no longer a permanent resident).

 

Concentrate on you, and what is best for you - not what you feel is best for immigration purposes.
Again, I will repeat - a marriage failure and divorce is not a reason for I-751 denial or termination of your permanent resident status. 
You have rights, and have a multitude of different legal avenues available to you, and further options depending what happens.  

 

 

 

[InhaleExhale 28]

  On 7/12/2020 at 11:17 PM, mindthegap said:

Concentrate on you, and what is best for you - not what you feel is best for immigration purposes.
Again, I will repeat - a marriage failure and divorce is not a reason for I-751 denial or termination of your permanent resident status. 
You have rights, and have a multitude of different legal avenues available to you, and further options depending what happens.  

Expand  

Thank you for your reply ❤️ 

[Villanelle 4,122]

  On 7/12/2020 at 6:38 PM, InhaleExhale said:

Thank you for your reply, I appreciate your insight a lot!

Not applicable? I do wonder what you mean is not applicable... would appreciate if you could share but of course I respect your time.

Expand  

As mindthegap also commented a lot of your post has unnecessary info and doesnt impact the process.

 

  10 hours ago, InhaleExhale said:

 

Not precisely right. I rather wonder if it would be needed to divorce now considering that USCIS only gives limited options and I have to watch the timeline to not end up in immi court.

Expand  

I wouldnt call it limited options. Its really only one option and honestly its not really even an option. To be approved on a joint ROC you need to be legally married (divorce can be in process but can not be final) AND both spouses have to sign and remain on the joint petition. Sometimes ROC is approved w/o interview but if theres any indication of being separated then you will most likely have a joint interview. 

If you are not married (have a final divorce) then you must file under the divorce waiver option. To be approved you need the final decree.

 

Many people fall into a gray area where they are in the process of a divorce. There is no box for separated. You are either legally married or legally divorced. Separated is not a choice of marital status with USCIS. A lot of people mistakenly think they can not file under divorce waiver unless they have the final decree which is not true- you can file as divorced even if you arent officially divorced yet-- you just can not be approved until there is a final decree. It is important to file in your 90 day window. 

 

So for someone that files as divorced but isnt divorced yet the package will go to USCIS.You get your NOA. Then It will sit a while. Typically it takes a few months for someone to process it and see there is no divorce and they will RFE you for it. You get 87 days to respond. If you have the decree you send it. If you dont, you tell them that and they will schedule you for an interview. The interview will probably be months away. The soonest it can be is 30 days. At the interview you bring your decree. IF you dont have it then yes, they have to deny you and you have to go to court where you can present it. 

 

If someone files as a joint and then later wants to switch- they notify USCIS of the pending divorce and USCIS will RFE for the decree and the same steps outlined above occur. 

 

  10 hours ago, InhaleExhale said:

So to make it accurate I would reword your sentence like this: 

My marriage has fallen apart. There is no opening to work at it at this point in time, very possibly at all. I am wondering if it is better to stay married because:

1-I am feeling that there is resistance in me emotionally to get divorced right now and I think that is just natural when relationships (in this case my first marriage) fall apart in way that is unfathomable to me.

2-I guess there is a wish in me to stay connected/bonded to him or better said to "not split/divide" because..I don't even know. I cannot comprehend that what happened actually did happen. And I am not done processing it.

On the other hand:

3-I see almost no chance for us to get back together as a happy couple, and I realize how I am saying "almost no chance" as if I still hope so. And I probably do. But that hope is just foolish and irrational.

4-considering the urgency of watching the ROC timeline and the fact that once USCIS asks for the divorce decree (in case I do file jointly but then get divorced later) and I only have 87 days to produce it, and if I can't, my understanding was that they must deny the ROC because they cannot adjudicate it and then they will send a NTA and I will end up in immigration court. I really want to avoid that.

Expand  

 

1&2- If you want to try to fix the marriage get a therapist and work on it but it has to be you both working on it. You are not going to fix it alone. You would file jointly and if things get worse you need to switch to a waiver.  If you wait too long to switch to a waiver you may end up in court. 3. If theres not much chance of it working out and being fixed then you are only hurting yourself by refusing to pull the bandaid off. 4 is kind of incorrect, as explained theres the RFE and then the interview where if you dont have it to bring to the interview then you go to court.

 

  10 hours ago, InhaleExhale said:

 

The window opens in Feb. I wouldn't say he is verbally abusive. I tried to make this a point earlier in the topic: there was ONE incident where he was. But yes, he has become unpredictable. And he has shown me that he has limited integrity.

 

 

Expand  

Some issues you just cant fix. Theres no shame in walking away from a bad situation. The best you can do is learn from it and move on. 

[InhaleExhale 28]

  On 7/12/2020 at 11:17 PM, mindthegap said:

Concentrate on you, and what is best for you - not what you feel is best for immigration purposes.

Expand  

Thank you. Best for me right now is healing. And processing. And understanding. And more healing. And peace. And getting back my strength.

[InhaleExhale 28]

  On 7/13/2020 at 5:18 AM, Villanelle said:

Typically it takes a few months for someone to process it and see there is no divorce and they will RFE you for it. You get 87 days to respond. If you have the decree you send it. If you dont, you tell them that and they will schedule you for an interview.

Expand  

Do you have any source that confirms that there will definitely be an interview if one cannot produce the decree within the 87 days they give you after sending the RFE? The only thing I am finding so far is the policy memorandum from 2009 which I understand as that the interview option is only 1 of 3. It reads that the petition can either be approved, denied OR scheduled for interview.

What am I missing?

Edit: the screenshot of this memo is in the bottom of this post, I don't know how to get it up here...

 

 

  On 7/13/2020 at 5:18 AM, Villanelle said:

If you want to try to fix the marriage get a therapist and work on it but it has to be you both working on it.

Expand  

Correct, like i mentioned initially, we have done marriage therapy which he terminated. There is no option as of now to approach any fixing. 😕 I cannot even get through to him. There is a barrier he is radiating that doesn't let pass any care or warmth.

Right now, I need to keep working on moving out and gather myself back to something resembling a resilient human being.

 

  On 7/13/2020 at 5:18 AM, Villanelle said:

you are only hurting yourself by refusing to pull the bandaid off.

Expand  

Thank you for this wise reminder.

Edited July 16, 2020 by InhaleExhale

[mindthegap 2,611]

  On 7/16/2020 at 6:42 PM, InhaleExhale said:

Do you have any source that confirms that there will definitely be an interview if one cannot produce the decree within the 87 days they give you after sending the RFE? The only thing I am finding so far is the policy memorandum from 2009 which I understand as that the interview option is only 1 of 3. It reads that the petition can either be approved, denied OR scheduled for interview.

What am I missing?

Expand  

It can be approved without interview after switching...it is just that the vast majority of the time waiver filings/switches get scheduled for interview. Thats just how they work. It most definitely isn't the only lax/questionable application of USCIS policy.

 

If you are worried about your spouse having to attend, don't worry, for a waiver interview they do not have to.

 

Regardless, if you have evidence, you should be ok (unless your ex goes psycho like mine and actively tries to destroy your life, in which case, my sympathies).

1)Divorce is not a reason for denial. 

2) See 1)

[InhaleExhale 28]

  On 7/17/2020 at 2:29 PM, mindthegap said:

It can be approved without interview after switching...it is just that the vast majority of the time waiver filings/switches get scheduled for interview. Thats just how they work. It most definitely isn't the only lax/questionable application of USCIS policy.

Expand  

Hmm..., I do understand that it CAN be approved. But it could also be denied if I understand the policy memorandum from 2009 correctly...? I understand it as that if I fail to produce a divorce decree within the 87 days an RFE allows me then it would be assessed "...whether it should be approved, denied or relocated". Unless I am completely misunderstanding their wording..am I?

Hence I am still confused by Villanelle's comment above:

  On 7/13/2020 at 5:18 AM, Villanelle said:

they will RFE you for it. You get 87 days to respond. If you have the decree you send it. If you dont, you tell them that and they will schedule you for an interview.

Expand  

Villanelle, I would so appreciate if you could clarify? Your wording sounds as if it is definite that they will schedule for interview if the decree is not sent within 87. But the memorandum sounds like it is merely an option...

Or did you actually mean that it is usually the case that they will interview instead of flat out denying..?

 

  On 7/17/2020 at 2:29 PM, mindthegap said:

Regardless, if you have evidence, you should be ok (unless your ex goes psycho like mine and actively tries to destroy your life, in which case, my sympathies).

Expand  

I think I have sufficient evidence for our bonafide's...I am sorry to hear about your ex going psycho...I had moments like this where I thought the same about my husband, as if I do not recognize the man I married anymore, it is definitely scary....!

[Villanelle 4,122]

The policy memo is a jumble of information and can be hard to decipher. Any petition can be denied. The memo has a footnote referring to another memo which explains a bit more. Generally they process at the service centers and will RFE for as much info as they can to make a decision. They then approve, send for interview or deny. If the RFE responses are not enough they will send it to the local office for an interview. There are limited cases that are denied by the service center but those cases are denied for fraud or misrepresentation. Often in cases of suspected fraud they do interview- so for the service center to deny w/o interview it would be because they have some sort of documentation to support and there would be nothing you could say in an interview to 'change their mind'. No one is ever denied for failing to establish bonafides w/o having an interview. Does that make sense? Its kind of like the concept of 'due process'. USCIS does not take denials lightly. Its a complex set up where they have to internally justify things because you can appeal the denial. So again the only way they are going to deny w/o interview is if they have something specific. If they are denying based on 'judgement call' it would be after they interview you. 

 

You send your petition to the service center. It will be checked by the mail room for general completeness (signatures/payment) they dont actually look at any of your evidence. It will sit until someone picks it up. It can sit anywhere from 30-60 days to 8-12 months. Theres no way of knowing when someone will pick it up. Currently they have a huge backlog so I wouldnt expect anyone to get to your package quickly. When they do pick it up-that person will see you dont have the final decree and RFE you for it. You then get the 87 days to respond. Most likely you will have your final decree (even though its going to take you 6 months to get it) before this 87 days is up. IF by some chance your case moves quickly and you get this RFE before the final divorce then you reply to the RFE that you dont have the decree yet. They will not deny you because of that. As posted divorce is not a reason for denial. So the Officer at the service center has your case, they RFE you for the decree, you dont have it. Their options are to approve you (which they cant) deny you (which there needs to be a reason for denial besides not producing the divorce decree) or send you for interview. So you will be sent for interview. There will be a wait for an interview slot to open. It may be a long wait because again they are backlogged. So you will most definitely have your decree to bring to the interview. If you dont have it at the interview then you can try to reschedule the interview if you are close to getting the decree, but if you are not (some places have a 1-2 year divorce process) then you have to go to the interview where they will have to deny you and it will be sent to court where you can present your divorce decree. You want to avoid this if possible. Start the divorce asap. Due to the backlog and overall timelines of things you should have the final decree to submit with the RFE. Or you can file jointly and switch to a waiver once you get the decree- just as I said make sure you switch promptly and are not accidentally approved as a joint because you failed to switch.

[InhaleExhale 28]

  On 8/24/2020 at 5:00 PM, Villanelle said:

The policy memo is a jumble of information and can be hard to decipher. Any petition can be denied. The memo has a footnote referring to another memo which explains a bit more. Generally they process at the service centers and will RFE for as much info as they can to make a decision. They then approve, send for interview or deny. If the RFE responses are not enough they will send it to the local office for an interview. There are limited cases that are denied by the service center but those cases are denied for fraud or misrepresentation. Often in cases of suspected fraud they do interview- so for the service center to deny w/o interview it would be because they have some sort of documentation to support and there would be nothing you could say in an interview to 'change their mind'. No one is ever denied for failing to establish bonafides w/o having an interview. Does that make sense? Its kind of like the concept of 'due process'. USCIS does not take denials lightly. Its a complex set up where they have to internally justify things because you can appeal the denial. So again the only way they are going to deny w/o interview is if they have something specific. If they are denying based on 'judgement call' it would be after they interview you. 

 

You send your petition to the service center. It will be checked by the mail room for general completeness (signatures/payment) they dont actually look at any of your evidence. It will sit until someone picks it up. It can sit anywhere from 30-60 days to 8-12 months. Theres no way of knowing when someone will pick it up. Currently they have a huge backlog so I wouldnt expect anyone to get to your package quickly. When they do pick it up-that person will see you dont have the final decree and RFE you for it. You then get the 87 days to respond. Most likely you will have your final decree (even though its going to take you 6 months to get it) before this 87 days is up. IF by some chance your case moves quickly and you get this RFE before the final divorce then you reply to the RFE that you dont have the decree yet. They will not deny you because of that. As posted divorce is not a reason for denial. So the Officer at the service center has your case, they RFE you for the decree, you dont have it. Their options are to approve you (which they cant) deny you (which there needs to be a reason for denial besides not producing the divorce decree) or send you for interview. So you will be sent for interview. There will be a wait for an interview slot to open. It may be a long wait because again they are backlogged. So you will most definitely have your decree to bring to the interview. If you dont have it at the interview then you can try to reschedule the interview if you are close to getting the decree, but if you are not (some places have a 1-2 year divorce process) then you have to go to the interview where they will have to deny you and it will be sent to court where you can present your divorce decree. You want to avoid this if possible. Start the divorce asap. Due to the backlog and overall timelines of things you should have the final decree to submit with the RFE. Or you can file jointly and switch to a waiver once you get the decree- just as I said make sure you switch promptly and are not accidentally approved as a joint because you failed to switch.

Expand  

Thank you so much for this detailed clarification!!! I understand much better now. Thank you for your time ❤️

[elen_shh 1]

Wishing all of you who are impacted the easiest and fastest journey. I am going through a very similar process:

 - filed joint I-751 in March 2019;

 - separated with my ex on summer 2019;

 - filed for divorce in November 2019;

 - informed USCiS to switch to waiver in Jan 2020;

 - divorce finalized in May 2020.

 - sent final package with divorce finalized.

Still waiting for USCIS.

 

My question to you guys I: what. is the difference between final divorce decree and divorce certificate?

What I have sent to USCIS was certificate to my understanding, and I am concerned that all I see in the forums is "decree".

 

Thanks in advance!