Joint petition I-751 with pending divorce?

[Aftershock 8]

Hello everyone,

As the title suggests, I am currently separated from my wife (USC) and we have filed for a dissolution. My GC expires September and the 90 day window for filing the ROC begins later this month. I have read a fair amount of posts here but couldn't quite find a similar situation.

Due to her infidelity, we have been separated since mid april, when we signed the divorce papers. The 6 month waiting period before finalizing the divorce will lapse in November. Obviously if I wait for the divorce decree until then, I'd have been out of status for 2 months. In an effort to try and avoid that, my soon to be ex-wife has agreed to file the joint petition within the 90 day window. She has signed off on the I-751 and has agreed to attend the interview if we get to it.

My understanding is that I need to file the joint petition with the list of bona-fides along with an explanation that we are separated, our marriage is over, and we are in divorce proceedings. Questions arise as to how much should I disclose regarding the circumstances leading to our separation. Should I include proof of infidelity? What if I get a RFE soon after filing asking for the divorce decree? I won't have it until November.

I understand that the best recourse would be to consult with a lawyer. I am turning to you guys here in case someone has been in a similar situation. Thank you for your time.

[Dashinka 24,488]

Sorry for your problems in your relationship.  These threads may be helpful.  In your case you won't be able to include the divorce decree when you submit the I751, but that can come later.

 

 

[mushroomspore 3,044]

26 minutes ago, Aftershock said:

Hello everyone,

As the title suggests, I am currently separated from my wife (USC) and we have filed for a dissolution. My GC expires September and the 90 day window for filing the ROC begins later this month. I have read a fair amount of posts here but couldn't quite find a similar situation.

Due to her infidelity, we have been separated since mid april, when we signed the divorce papers. The 6 month waiting period before finalizing the divorce will lapse in November. Obviously if I wait for the divorce decree until then, I'd have been out of status for 2 months. In an effort to try and avoid that, my soon to be ex-wife has agreed to file the joint petition within the 90 day window. She has signed off on the I-751 and has agreed to attend the interview if we get to it.

My understanding is that I need to file the joint petition with the list of bona-fides along with an explanation that we are separated, our marriage is over, and we are in divorce proceedings. Questions arise as to how much should I disclose regarding the circumstances leading to our separation. Should I include proof of infidelity? What if I get a RFE soon after filing asking for the divorce decree? I won't have it until November.

I understand that the best recourse would be to consult with a lawyer. I am turning to you guys here in case someone has been in a similar situation. Thank you for your time.

Very sorry to hear. Actually, it's a regular question here. Since the separation process has already started, it would be untruthful to file jointly. File as "divorced" with the explanation letter that you have recently started the divorce process and the other evidence (financial mingling, cohabitation, etc). But no need to go into detail about why you are divorcing. They don't have time to read everyone's stories about that and it doesn't really matter to them why you're divorcing. They understand it happens and if they suspected you of fraud, you would know it at this point. You most likely will get the RFE requesting the divorce decree, but when it comes, you can reply with whatever paperwork related to the divorce that has been processed at that point.

[Aftershock 8]

17 minutes ago, Dashinka said:

Sorry for your problems in your relationship.  These threads may be helpful.  In your case you won't be able to include the divorce decree when you submit the I751, but that can come later.

 

 

Thank you for the suggestions, Дашинка. The first post the person gets the Divorce decree before he is set to file, so not quite like my situation.
 

5 minutes ago, mushroomspore said:

Very sorry to hear. Actually, it's a regular question here. Since the separation process has already started, it would be untruthful to file jointly. File as "divorced" with the explanation letter that you have recently started the divorce process and the other evidence (financial mingling, cohabitation, etc). But no need to go into detail about why you are divorcing. They don't have time to read everyone's stories about that and it doesn't really matter to them why you're divorcing. They understand it happens and if they suspected you of fraud, you would know it at this point. You most likely will get the RFE requesting the divorce decree, but when it comes, you can reply with whatever paperwork related to the divorce that has been processed at that point.

That makes a lot of sense, although I am wary to file for the divorce waiver before the divorce being actually finalized. According to this Memorandum issued by USCIS(see attached) I can indeed file for the waiver and pray that the RFE would come with enough time left for me to respond with the final divorce decree. The Memorandum also notes the possibility of filing jointly even if divorce proceedings have started. I am weighing the pros and cons on my options and hopefully someone else can chime in. Thank you mushroomspore!

i-751_Filed_ Prior_Termination_3apr09.pdf

[African Zealot 1,455]

There’s nothing unique about your case. Filing with your soon to be ex will be unethical and misrepresentation, because you’re getting divorced.

 

The correct, right, and best way for you to proceed is with a divorce waiver.

 

Good luck.

[mushroomspore 3,044]

1 hour ago, Aftershock said:

Thank you for the suggestions, Дашинка. The first post the person gets the Divorce decree before he is set to file, so not quite like my situation.
 

That makes a lot of sense, although I am wary to file for the divorce waiver before the divorce being actually finalized. According to this Memorandum issued by USCIS(see attached) I can indeed file for the waiver and pray that the RFE would come with enough time left for me to respond with the final divorce decree. The Memorandum also notes the possibility of filing jointly even if divorce proceedings have started. I am weighing the pros and cons on my options and hopefully someone else can chime in. Thank you mushroomspore!

i-751_Filed_ Prior_Termination_3apr09.pdf 155.11 kB · 1 download

That PDF is from 2009 and it's generally best to wary of extremely old information pertaining to USCIS. By the simple virtue that you are legally separated at this point and have officially started the divorce process, it'd be misleading to file jointly.

Edited June 4, 2021 by mushroomspore

[Nitas_man 3,100]

File with a divorce waiver.  You’ll be long divorced before they process this application.

 

Advised someone else the other day - the last thing you want is an ex-spouse who is on a support affidavit hook involved in this.  You could get a joint interview and she can say anything she wants.  Do this on your own.

Edited June 4, 2021 by Nitas_man

[Timona 4,207]

It's currently taking USCIS  2-3 months just to receive, process and issue receipts. If you file in July, it'll be September when the receipts come. 

 

That will be close to your final divorce decree. 

[Aftershock 8]

Thank you everyone for your suggestions. I will proceed filing with the divorce waiver.

[Aftershock 8]

On 6/4/2021 at 1:42 PM, mushroomspore said:

Very sorry to hear. Actually, it's a regular question here. Since the separation process has already started, it would be untruthful to file jointly. File as "divorced" with the explanation letter that you have recently started the divorce process and the other evidence (financial mingling, cohabitation, etc). But no need to go into detail about why you are divorcing. They don't have time to read everyone's stories about that and it doesn't really matter to them why you're divorcing. They understand it happens and if they suspected you of fraud, you would know it at this point. You most likely will get the RFE requesting the divorce decree, but when it comes, you can reply with whatever paperwork related to the divorce that has been processed at that point.

Hello again, I am back with some final questions before I file my petition and hope you experts can shine some light.

Looking at the I-751 form, I was previously advised to state my Marital Status(Part 1.10) as "divorced". I am not divorced yet and therefore cannot provide a date for divorce on Part 1.13. Should I put "N/A" and explain my circumstance in the explanation letter?

AND

Is Part 8 (Spouse's Statement) supposed to be left completely blank?

I appreciate all your people's time and help. Thank you.