Divorce AFTER GC/N-400 received (NO FAULT)

[DivorceHELP353 1]

Dear All,

Thank you for all your continued support on my long and stressful journey through immigration, I thought it was all over but it seems I am not quite there yet...

 

Long story short. I got my greencard (via i-751) and citizenship in April at the same time via marriage to a US spouse. 

Our marriage was always a little rocky but since I got my citizenship my US spouse has assaulted me, set fire to various items in the house and acted out in front of our daughter. She is now threatening to file for divorce, however in NY the no fault divorce requires one party to state that the marriage has been irretrievably broken down for six months. Obviously this conflicts with my i-751 Green Card and N-400 interview three months ago. I am concerned that if she files it may cause problems with immigration in the future. Either a) USCIS attempting to revoke my green card and citizenship or b) Issues if I want to marry anyone from abroad in the future (No plans to do this).

 

Our marriage was rocky three months ago but I would not say it was irretrievably broken down. We were talking about seeing a counsellor as much as a few days ago. I still want to continue the marriage for the sake of our daughter on the condition that she calms down.

 

I would be interested to hear the forums thoughts. I have contacted a few lawyers and received conflicting advice.

 

Thank you.

[payxibka 10,045]

4 minutes ago, DivorceHELP353 said:

Dear All,

Thank you for all your continued support on my long and stressful journey through immigration, I thought it was all over but it seems I am not quite there yet...

 

Long story short. I got my greencard (via i-751) and citizenship in April at the same time via marriage to a US spouse. 

Our marriage was always a little rocky but since I got my citizenship my US spouse has assaulted me, set fire to various items in the house and acted out in front of our daughter. She is now threatening to file for divorce, however in NY the no fault divorce requires one party to state that the marriage has been irretrievably broken down for six months. Obviously this conflicts with my i-751 Green Card and N-400 interview three months ago. I am concerned that if she files it may cause problems with immigration in the future. Either a) USCIS attempting to revoke my green card and citizenship or b) Issues if I want to marry anyone from abroad in the future (No plans to do this).

 

Our marriage was rocky three months ago but I would not say it was irretrievably broken down. We were talking about seeing a counsellor as much as a few days ago. I still want to continue the marriage for the sake of our daughter on the condition that she calms down.

 

I would be interested to hear the forums thoughts. I have contacted a few lawyers and received conflicting advice.

 

Thank you.

No impact,  besides,  how will they even know about the divorce.  

 

You will have a waiting period before you can petition a spouse 

Edited July 5, 2021 by payxibka

[DivorceHELP353 1]

I guess if I wanted to marry someone in the future from overseas I would have to submit the divorce decree

Thanks for your response

[little immigrant 801]

8 hours ago, payxibka said:

No impact,  besides,  how will they even know about the divorce.  

 

You will have a waiting period before you can petition a spouse 

It was 5 years correct? 

[arken 4,197]

 

 

14 hours ago, payxibka said:

Obviously this conflicts with my i-751 Green Card and N-400 interview three months ago. I am concerned that if she files it may cause problems with immigration in the future. Either a) USCIS attempting to revoke my green card and citizenship

Forget green card, you are already a USC. A divorce won't affect the citizenship. If you petition for someone right after divorce, it may be scrutinized more but it won't affect your citizenship.

[nastra30 2,287]

16 hours ago, DivorceHELP353 said:

a) USCIS attempting to revoke my green card and citizenship - You are a US citizen now, your divorce will have absolutely no effect on your citizenship. She can't even use that as a threat against you.

or b) Issues if I want to marry anyone from abroad in the future (No plans to do this). - You are free to marry anyone from anywhere if you choose.  The waiting period to sponsor a foreign spouse in your situation is 5 years from when you initially become LPR, unless you are able to basically convince IO that the marriage was not fraudulent and happened in good faith.
 

https://www.govinfo.gov/content/pkg/CFR-2012-title8-vol1/pdf/CFR-2012-title8-vol1-sec204-2.pdf
§ 204.2 Petitions for relatives, widows and widowers, and abused spouses and children. (a) Petition for a spouse—(1) Eligibility. A United States citizen or alien admitted for lawful permanent residence may file a petition on behalf of a spouse. (i) Marriage within five years of petitioner’s obtaining lawful permanent resident status. (A) A visa petition filed on behalf of an alien by a lawful permanent resident spouse may not be approved if the marriage occurred within five years of the petitioner being accorded the status of lawful permanent resident based upon a prior marriage to a United States citizen or alien lawfully admitted for permanent residence, unless: (1) The petitioner establishes by clear and convincing evidence that the marriage through which the petitioner gained permanent residence was not entered into for the purposes of evading the immigration laws; or (2) The marriage through which the petitioner obtained permanent residence was terminated through death.

 

[Timona 4,207]

17 hours ago, payxibka said:

No impact,  besides,  how will they even know about the divorce.  

 

You will have a waiting period before you can petition a spouse 

 

I thought this/ the 5 years wait was only for GC holders and does not apply to citizens? I understand scrutiny may exist.

@nastra30 provided a link and a quote. I read both. From my understanding, it says the 5 year is from the day you obtained your GC AND for GC holders. Or am I wrong in my comprehension?

[nastra30 2,287]

6 minutes ago, Timona said:

 

I thought this/ the 5 years wait was only for GC holders and does not apply to citizens? I understand scrutiny may exist.

@nastra30 provided a link and a quote. I read both. From my understanding, it says the 5 year is from the day you obtained your GC AND for GC holders. Or am I wrong in my comprehension?

You may very well be right.

Edited July 6, 2021 by nastra30

[Letspaintcookies 2,310]

OPs concern seem less about when he can petition for someone else but that he misrepresented himself to USCIS by saying 3 months ago that his marriage was more or less fine while the way the divorce is filed now says it was already over by the time of his interview.

 

And while nobody will look into this now it might come up if he petitions for somebody in the future and he has to present his divorce decree and somebody does the math and suddenly says: hey you lied to us back then. We now take away your citizenship. 

 

Is this something that can possibly happen? 

[Mike E 11,739]

18 hours ago, DivorceHELP353 said:

She is now threatening to file for divorce, however in NY the no fault divorce requires one party to state that the marriage has been irretrievably broken down for six months. Obviously this conflicts with my i-751 Green Card and N-400 interview three months ago.

 

Since your spouse asserted in the I-751 interview that the marriage was solid, if your spouse says in a different document the marriage had irretrievably broken down for at least 6 months then your spouse is committing perjury.  Either at the I-751 interview or in the divorce filing.  But either way it is perjury.  
 

Let  your spouse commit perjury. Then report your spouse to a New York state or local police department for a false statement in the divorce filing.
 

Your spouse might then assert that the divorce filing is true, and the state/local police might then decline to file charges.   Thus your spouse would  be admitting to perjury in the I-751 interview.  In that case report your spouse to the FBI for a false statement in the I-751 interview.  
 

With a criminal record and perhaps a conviction and time in a state or federal prison, it will be more difficult for your spouse to get custody of your child.  
 

If your spouse is convicted of federal perjury I suppose you run the risk of denaturalization but you could then re-file I-751 on the basis of a divorce waiver or an abuse waiver.  And then re-naturalize with 5 years as an LPR.  
 

 

Edited July 6, 2021 by Mike E

[Mike E 11,739]

1 hour ago, Letspaintcookies said:

OPs concern seem less about when he can petition for someone else but that he misrepresented himself to USCIS by saying 3 months ago that his marriage was more or less fine while the way the divorce is filed now says it was already over by the time of his interview.

 

And while nobody will look into this now it might come up if he petitions for somebody in the future and he has to present his divorce decree and somebody does the math and suddenly says: hey you lied to us back then. We now take away your citizenship. 

 

Is this something that can possibly happen? 

If OP believe the marriage was not broken  the onus is on DHS to prove otherwise.  

Edited July 6, 2021 by Mike E

[tony3841 2]

1 hour ago, Mike E said:

 

Since your spouse asserted in the I-751 interview that the marriage was solid, if your spouse says in a different document the marriage had irretrievably broken down for at least 6 months then your spouse is committing perjury.  Either at the I-751 interview or in the divorce filing.  But either way it is perjury.  
 

Let  your spouse commit perjury. Then report your spouse to a New York state or local police department for a false statement in the divorce filing.
 

Your spouse might then assert that the divorce filing is true, and the state/local police might then decline to file charges.   Thus your spouse would  be admitting to perjury in the I-751 interview.  In that case report your spouse to the FBI for a false statement in the I-751 interview.  
 

With a criminal record and perhaps a conviction and time in a state or federal prison, it will be more difficult for your spouse to get custody of your child.  
 

If your spouse is convicted of federal perjury I suppose you run the risk of denaturalization but you could then re-file I-751 on the basis of a divorce waiver or an abuse waiver.  And then re-naturalize with 5 years as an LPR.  
 

 

Well it is not necessarily perjury. It could be that she honestly thought that the marriage was not broken. But then, 3 months later, in hindsight, it has been broken for 6 months. No perjury, just optimism/delusion depending on how you look at it.

[HRQX 4,145]

20 hours ago, payxibka said:

You will have a waiting period before you can petition a spouse 

There is no waiting period in OP's case because OP is now a US citizen; see INA 204(a)(2). The spouse of US citizen is an Immediate Relative petition, not a "second preference petition." Also see 8 CFR § 204.2(a)(1)(i).

11 hours ago, little immigrant said:

It was 5 years correct? 

No wait time in OP's case. I.e. OP could marry ASAP and subsequently petition the new spouse without an issue on the I-130 process.

[Mike E 11,739]

7 minutes ago, tony3841 said:

Well it is not necessarily perjury. It could be that she honestly thought that the marriage was not broken. But then, 3 months later, in hindsight, it has been broken for 6 months. No perjury, just optimism/delusion depending on how you look at it.

Yes, physical abusers often revise their recollections: "Yes I realize now that 6 months ago I wanted to set a fire in our dwelling, but now recall that I suppressed that urge and repressed the memoy of that urge".

 

Let the police, a prosecutor, or a jury determine guilt. OP has raised a valid point the inconsistency, it is best that OP start the paper trail so that down the road, as @Letspaintcookies so mused, this does not comeback to bite OP. 

Edited July 6, 2021 by Mike E

[Timona 4,207]

2 hours ago, Letspaintcookies said:

OPs concern seem less about when he can petition for someone else but that he misrepresented himself to USCIS by saying 3 months ago that his marriage was more or less fine while the way the divorce is filed now says it was already over by the time of his interview.

 

And while nobody will look into this now it might come up if he petitions for somebody in the future and he has to present his divorce decree and somebody does the math and suddenly says: hey you lied to us back then. We now take away your citizenship. 

 

Is this something that can possibly happen? 

 

He rightfully got his N400. You cannot text USCIS and tell them " I think my marriage is breaking down. Do not adjudicate my case."

Marriage is a tough. There are rainy and sunny days. So unless OP had actual divorce certificate on hand prior to N400 adjudication, my opinion is that he did not do anything wrong. I mean, there are couples who file for divorce but never go through with or even pull out last minute. Don't you think it would be disastrous if you pull out the petition and then you guy end up going to counselling or find out the fight was a result of some neighborhood gossip or just a heat of a moment? This is why we always advise VJers who come here that they want to pull out their spouse's petition to be really sure before they pull out because it cannot be re-instated.