I-751 / Divorce circus show

[Villanelle 4,122]

23 hours ago, Mobius1 said:

Thanks for your input. I have yet to see a law in writing that says we are supposed to inform them of divorce filing or separation even. Like how there is one for address change.

 

 

 

https://www.uscis.gov/green-card/after-we-grant-your-green-card/conditional-permanent-residence/removing-conditions-on-permanent-residence-based-on-marriage

 

Click to expand the heading If you are in Divorce Proceedings but are not yet Divorced.

 

If you are still married, but legally separated and/or in pending divorce or annulment proceedings, and you filed a Form I-751 jointly, we will issue an RFE specifically asking for a copy of the final divorce decree or annulment and a statement that you would like to have your joint filing Form I-751 treated as a waiver.

 

 

How exactly do you think they would know divorce was officially filed or a couple chose to separate with out filing (moves out and in with new partners) except for the fact of you telling them? 

 

Side note the paragraph I quoted above is the second paragraph under the header. The first starts with if you are still married and divorce pending and you filed a waiver etc etc. 

 

So this idea that there is no guidance is not entirely accurate. I am also uncomfortable with the concept of avoiding difficult paths because as we all know everyones immigration path is different. Some are harder than others. Yes, advising them of the divorce would have caused them to RFE for the decree. You don't have it yet? IT'S OKAY, seriously its ok. They don't deny you then and there. 

 

The 751 form is unique and there are various steps to processing denials. The only swift removal of status occurs for those who fail to file as USCIS takes the position oh I guess you don't want your card anymore since you failed to file. 

 

So when the RFE comes back with a sorry I don't have the decree, you are scheduled for an interview.  Still don't have it? Well that's a shame but USCIS can't hold your case forever.  They have to deny it and send it to the court. Now theres a huge difference between a denial from USCIS for the 751 and an immigration judge ruling such.

 

Uscis denial is meaningless! They do not have the authority to strip your status. All their denial means is they couldn't adjudicate your form because you don't have the right paperwork. 

 

The judge on the other hand has the opposite authority. The judge can remove your status but the judge can not adjudicate 751s! (crazy but true). The judge can and will hold your case until you get your decree (which if you are using the waiver you need), or you can be adjudicated on  a joint 751 if both you and your soon to be ex desire such. But if you were choosing to remain on the joint you would have advised them of such when they asked you for the decree. Circling us back to why they asked for the decree (cause you would have notified them of pending divorce) Notifying them of a divorce when a joint was filed does not automatically switch you to a waiver. One spouse requesting to be removed from the joint typically causes it to be switched but can also result in a denial instead if they are so inclined. 

 

In some places divorce can have a mandatory 1-2 yr separation period.  And not everyone wants to remain on a joint petition.

 

But like I said people shouldn't avoid a path simply because its more difficult. No where no when no how is it ever is it a good idea to 'keep quiet' regarding what you disclose to immigration. Sorry,  I just can't agree with that. Not that the OP or anyone specifically said such, its just some of this thread reads with that sentiment..

 

 

 

 

[Rocio0010 5,674]

11 hours ago, Villanelle said:

So this idea that there is no guidance is not entirely accurate. I am also uncomfortable with the concept of avoiding difficult paths because as we all know everyones immigration path is different. Some are harder than others. Yes, advising them of the divorce would have caused them to RFE for the decree. You don't have it yet? IT'S OKAY, seriously its ok. They don't deny you then and there. 

This is, in my view, an excellent comment. It might be too late for OP, but maybe this helps future applicants. I’m not a lawyer, but I think the best thing to  do as soon as divorce is filed, is to switch to a divorce waiver, and wait for that RFE. If the RFE comes and the divorce decree is not in hand, yes, they’ll deny the case but that’s not the end of all. An I-751 denied does not mean you’re out of status. So when one gets the divorce decree, find a new one solo. In that way, one leaves a paper trail showing that one was diligent in letting them know. 
Yes, it’s going to be expensive. Yes, the timing in between filing the 751 and the approval sucks because so many things can happen in a relationship. But then that means peace of mind when filing N400, which hopefully is the last time you deal with USCIS.

[Boiler 46,277]

PYou can keep refilling I 751

Much cheaper than the legal fees

[Chocobo 196]

@Mobius1 - I am so sorry that you are going through this.  Hopefully some of what has been said will give you some peace, as I do think (based on the letter of the law), you will be ok going forward with the N400, even if you have to face extra scrutiny.  Start preparing for all of that NOW.  Make yourself a very nice binder which is tabbed and has a TON of information and documents to explain and prove what occurred.

 

Thinking out loud here and very curious to hear what others have to say on this...  What does someone do when they are faced with a highly contested divorce?  My DH is my second.  First husband and I divorced in 2015 and it took over two years to finalize... that was pre-COVID.  If someone dealing with a ROC in that type of situation, that would be horrible!  (Toss in a requirement as some states have it where you must have a 6 month separation prior to divorce.)  I think this is why the prior legal advice was given to OP.  This also lines up with @mindthegap was saying - until you have the final divorce decree, you're not divorced.  Until the judge puts his/her signature on that final order and there's an "entered" file stamp, anything can happen - it can drag on for YEARS, or the couple can reconcile, etc.  Makes me think the USCIS should establish some kind of third option for this, like a pending divorce waiver.  Something that covers people when they are in the place that their divorce isn't final.  Maybe make it that you are issued another conditional green card, or have to bring in your divorce paperwork so that the IO (or someone) can review for status and let that factor into a final ROC decision.  But until you have that final divorce decree, there is no divorce and the marriage is still valid.  (LOL, just ask the IRS.)

[Crazy Cat 42,563]

1 hour ago, Chocobo said:

But until you have that final divorce decree, there is no divorce and the marriage is still valid.  (LOL, just ask the IRS.)

The IRS doesn't recognize a divorce  for tax liability even after a final decree.   Divorce is used only to determine filing status....not tax liability, even if the final decree states who will pay..

 

https://www.irs.gov/publications/p504

"

Divorced taxpayers.

 

If you are divorced, you are jointly and individually responsible for any tax, interest, and penalties due on a joint return for a tax year ending before your divorce. This responsibility applies even if your divorce decree states that your former spouse will be responsible for any amounts due on previously filed joint returns."

[Family 4,254]

1 hour ago, Chocobo said:

What does someone do when they are faced with a highly contested divorce? 

Ideally they have deep pockets for a good divorce attorney that can push for status only divorce to satisfy USCIS, and battle of assets/liabilities/ custody or other contested issues continue dragging on. 
They also need to get immigration attorneys to help them navigate the existing “ guidance “ and USCIS preference that process be resolved in removal proceedings, much like OP did. 
Lastly, if they resort to self help/ DIYers, hope they run into @mindthegap moderating a thread on facing that journey..and hopefully others , like you, that offer hope,  post and engage . 

[Mobius1 175]

Thanks @Chocobo 

 

I did consult two lawyers with different opinions but relatively same conclusion. One of them was Amany (Jim Hacking’s wife) while other one a pretty well reviewed lawyer. 
 

Amany has had such a case before where the client got divorce finalized one or two days after the joint Petition was approved while mine was approved 97 days before decree. She sent the decree 3 times after the approval and all the times it was denied as the client was already approved. The client also was able to get her citizenship. Either ways she doesn’t believe in sending a second i751 solo, nor thinks this is going to be a huge problem. It’s messed up indeed but at best will attract scrutiny about marriage.

 

Second lawyer was completely okay with this case and was 100% confident that this is not an issue. Was laughing all the way about how much I was worried.

 

So I am staying positive on this. 

Edited June 21, 2022 by Mobius1

[Rocio0010 5,674]

1 hour ago, Mobius1 said:

Thanks @Chocobo 

 

I did consult two lawyers with different opinions but relatively same conclusion. One of them was Amany (Jim Hacking’s wife) while other one a pretty well reviewed lawyer. 
 

Amany has had such a case before where the client got divorce finalized one or two days after the joint Petition was approved while mine was approved 97 days before decree. She sent the decree 3 times after the approval and all the times it was denied as the client was already approved. The client also was able to get her citizenship. Either ways she doesn’t believe in sending a second i751 solo, nor thinks this is going to be a huge problem. It’s messed up indeed but at best will attract scrutiny about marriage.

 

Second lawyer was completely okay with this case and was 100% confident that this is not an issue. Was laughing all the way about how much I was worried.

 

So I am staying positive on this. 

Such a relief to hear that two attorneys have shed light on this, and it’s a good light. Do keep us updated please. I feel like you won’t be the only case

[Villanelle 4,122]

@Chocobo Again it's not a big deal if your divorce takes a long time. USCIS understands divorce/family court moves at it's own pace. But it's unreasonable for USCIS to hold your case until the final decree is ultimately issued.  

 

The conditional card requires you to file ROC at the 2yr mark. ROC requires you to file a joint petition.  You can use waivers to waive the joint filing requirement-- hence why we call them waivers. 

 

What you described as a possible solution is actually what occurs.  You don't lose your status if you are requesting a waiver but don't have the decree yet, and the Judge will hold it as long as you need. And then the final ROC decision would be made once you do. 

 

People just tend to be scared by the USCIS denial.

[Villanelle 4,122]

@Mobius1

 

Glad to hear you spoke with different attorneys and they left you with a positive sentiment overall.  

 

Personally I don't think your concerns are funny. I mean we see people post all kinds of concerns,  some can be called silly-  but you have valid concerns.

 

Are you prepared for the 'scrutiny' at the interview? Which is not guaranteed to even occur but it's better to be prepared right? 

 

I would be discussing that with the attorneys rather than the n400 having issues.  Early in the thread I asked you various questions which went unanswered about address change and how a variety of evidences sent for joint ROC might not have been still valid/intact.

 

This wasnt me simply being nosy. Did you change your address? If no why not? If yes, that could be viewed as you 'notifying' them you no longer lived in the joint marital home.  You mentioned a child right? Did you separate the joint accounts prior to the divorce? Did you pay child support when the divorce was first filed or was it only once the decree ordered it? 

 

You also realize that because you filed a joint and never switched that USCIS can reach out to your spouse? Not sure how amicable the separation was as part of the advice you posted an attorney previously gave said something about filing a FOIA to see if soon to be ex said anything.  Did you ever file the FOIA? They will know if you did. They will know about the addresses. They are going to have a variety of documents you provided which they will use to ask you questions. 

 

They typically like to look at DL or bank/employment records and use them as circumstantial framing if that makes sense.  Oh so you separated from your spouse in Feb but your DL says you moved out in dec how do you explain such?  I am going to assume your divorce was based on some kind of mutual differences and does not have any mention of fraud or abuse in it right? Adultery? Did you file or did your ex? Does it matter? Yes and no. 

 

Some of the things they ask don't matter. Its a fishing expedition so to speak.  The goal of your attorney should be to help prepare you to not get tangled in the fishing line and be able to point out they are not catching anything and to move on fishing elsewhere with a new 'contestant' as theres nothing to see here.  You also do not want to damage your GMC (needed for the n400) with answers to questions that would have never been asked except for the circumstances. 

 

I think a lot of this is going to come down to general mood of whomever is interviewing you and then attorney competence. 

 

I would suggest bringing a notebook and promptly writing down everything you can remember being said immediately afterwards regardless if you feel it went well or not.  Many people have walked out with a false optimistic outlook because that's also an interview technique to avoid face to face confrontation they use. 

[Mobius1 175]

1 hour ago, Villanelle said:

@Mobius1

 

Glad to hear you spoke with different attorneys and they left you with a positive sentiment overall.  

 

Personally I don't think your concerns are funny. I mean we see people post all kinds of concerns,  some can be called silly-  but you have valid concerns.

 

Are you prepared for the 'scrutiny' at the interview? Which is not guaranteed to even occur but it's better to be prepared right? 

 

I would be discussing that with the attorneys rather than the n400 having issues.  Early in the thread I asked you various questions which went unanswered about address change and how a variety of evidences sent for joint ROC might not have been still valid/intact.

 

This wasnt me simply being nosy. Did you change your address? If no why not? If yes, that could be viewed as you 'notifying' them you no longer lived in the joint marital home.  You mentioned a child right? Did you separate the joint accounts prior to the divorce? Did you pay child support when the divorce was first filed or was it only once the decree ordered it? 

 

You also realize that because you filed a joint and never switched that USCIS can reach out to your spouse? Not sure how amicable the separation was as part of the advice you posted an attorney previously gave said something about filing a FOIA to see if soon to be ex said anything.  Did you ever file the FOIA? They will know if you did. They will know about the addresses. They are going to have a variety of documents you provided which they will use to ask you questions. 

 

They typically like to look at DL or bank/employment records and use them as circumstantial framing if that makes sense.  Oh so you separated from your spouse in Feb but your DL says you moved out in dec how do you explain such?  I am going to assume your divorce was based on some kind of mutual differences and does not have any mention of fraud or abuse in it right? Adultery? Did you file or did your ex? Does it matter? Yes and no. 

 

Some of the things they ask don't matter. Its a fishing expedition so to speak.  The goal of your attorney should be to help prepare you to not get tangled in the fishing line and be able to point out they are not catching anything and to move on fishing elsewhere with a new 'contestant' as theres nothing to see here.  You also do not want to damage your GMC (needed for the n400) with answers to questions that would have never been asked except for the circumstances. 

 

I think a lot of this is going to come down to general mood of whomever is interviewing you and then attorney competence. 

 

I would suggest bringing a notebook and promptly writing down everything you can remember being said immediately afterwards regardless if you feel it went well or not.  Many people have walked out with a false optimistic outlook because that's also an interview technique to avoid face to face confrontation they use. 

Thanks for your concerns and suggestions.

 

Proving a marriage isn't really a problem when you have a history of 4 years of financial and physical co-mingling, pictures, her family's affidavits. The list is really very long.

 

I know a lot of folks here disagree with the idea of a child but its my first hand experience IO being done in 2 mins of interview on AoS and them waiving i751 interview. That's their satisfaction of genuine marriage right there.

 

No one gets married to waste 4 years of their life and deal with a co-parent/ child support (for life) for a fraud marriage esp when you were here legally and had a path to GC thru employment. 
 

I actually have answers for every single question you have down to the bone marrow but I don't feel like detailing my life here. However, IO will hear all of it, if required.

 

At the end, weather you get a benefit or not, your life also doesn't just stop even back home. I am content with the lawyers and will obviously prepare.