Applying for ROC when separated

[BandBjourney 21]

Hi all! 

(I really hope I have written this in the right forum, if not, I apologize)

 

I entered the US on a K1 visa in 2019, got married and later received my 2 year conditional green card (from 2020-expires dec 2022). It is coming up to the 90 day window to apply for removal of conditions on my green card. (It expires in December 2022 and I want to send off my documents as soon as I can in September.) However, my US citizen spouse has decided that he would like to separate. This happened last week and is still very fresh. It has been very amicable between us and he wants me to continue living in the US as we share pets and are also generally good friends. He is happy to sign any documents I need for me to stay.

 

I have already gathered the majority of the documents needed for submission including: joint health insurance, co-signing on car lease, joint bank account, same home address, affidavit from people that know us and photographs of our relationship. I think we have enough evidence to show that we entered the marriage in good faith. At this time, we do not plan on getting divorced and would like to spend time away from each other for space. I will be moving to Arizona and he will stay in New York. My question is, how do I indicate that we are separated but with no intention at this time of divorce. I have written a statement explaining the situation but unsure if this is enough. Our finances will remain mixed but we will be living apart.

 

My questions are:

- If I apply for ROC and then get a biometrics appointment, can I reschedule and take it in an AZ location? 

- Would it go against me if I indicate that I am moving out of state during this time?

- I know there is no option for 'separated' on the form, but what else can I provide to USCIS to support my application while still being honest?

 

I have read about requesting a divorce waiver but like I said, we have not considered getting divorced at this time and may work things out in the future. I am moving to Arizona as I have friends there as I cannot afford to live alone in NY. 

 

This is a completely unexpected situation for me so please be kind and I appreciate any advice. Thank you so much.

[Lil bear 4,181]

10 minutes ago, BandBjourney said:

Hi all! 

(I really hope I have written this in the right forum, if not, I apologize)

 

I entered the US on a K1 visa in 2019, got married and later received my 2 year conditional green card (from 2020-expires dec 2022). It is coming up to the 90 day window to apply for removal of conditions on my green card. (It expires in December 2022 and I want to send off my documents as soon as I can in September.) However, my US citizen spouse has decided that he would like to separate. This happened last week and is still very fresh. It has been very amicable between us and he wants me to continue living in the US as we share pets and are also generally good friends. He is happy to sign any documents I need for me to stay.

 

I have already gathered the majority of the documents needed for submission including: joint health insurance, co-signing on car lease, joint bank account, same home address, affidavit from people that know us and photographs of our relationship. I think we have enough evidence to show that we entered the marriage in good faith. At this time, we do not plan on getting divorced and would like to spend time away from each other for space. I will be moving to Arizona and he will stay in New York. My question is, how do I indicate that we are separated but with no intention at this time of divorce. I have written a statement explaining the situation but unsure if this is enough. Our finances will remain mixed but we will be living apart.

 

My questions are:

- If I apply for ROC and then get a biometrics appointment, can I reschedule and take it in an AZ location? 

- Would it go against me if I indicate that I am moving out of state during this time?

- I know there is no option for 'separated' on the form, but what else can I provide to USCIS to support my application while still being honest?

 

I have read about requesting a divorce waiver but like I said, we have not considered getting divorced at this time and may work things out in the future. I am moving to Arizona as I have friends there as I cannot afford to live alone in NY. 

 

This is a completely unexpected situation for me so please be kind and I appreciate any advice. Thank you so much.

ROC is either on the basis of ongoing bonafide marriage relationship .. which it sounds like it is not your situation at this time … or with a divorce waiver. Separated is not a valid relationship state for ROC.. and as your GC expires , you need to file ROC in a timely manner 

[BandBjourney 21]

3 minutes ago, Lil bear said:

ROC is either on the basis of ongoing bonafide marriage relationship .. which it sounds like it is not your situation at this time … or with a divorce waiver. Separated is not a valid relationship state for ROC.. and as your GC expires , you need to file ROC in a timely manner 

Ok so what is the next step. Do I submit all documents above and then also write a statement asking for a divorce waiver? I am totally new to this situation and feeling very overwhelmed. 

[Lil bear 4,181]

2 minutes ago, BandBjourney said:

Ok so what is the next step. Do I submit all documents above and then also write a statement asking for a divorce waiver? I am totally new to this situation and feeling very overwhelmed. 

You will need the finalized divorce paperwork for this to be completed. So you need to sort through the marriage future .. you don't get a divorce waiver for ROC without actually being divorced 

Edited August 14, 2022 by Lil bear

[BandBjourney 21]

1 minute ago, Lil bear said:

You will need the finalized divorce paperwork for this to be completed. So you need to sort through the marriage future .. you don't get a divorce waiver for ROC without actually being divorced 

But this all occurred last week. From what I have read, in New York you need to be separated for 6 months before asking for a divorce.

[Lil bear 4,181]

6 minutes ago, BandBjourney said:

But this all occurred last week. From what I have read, in New York you need to be separated for 6 months before asking for a divorce.

I do not know the ins and out of NY divorce. It is my understanding that you can file for ROC as married now and then change to divorce waiver when the divorce is finalized .. but it is tricky timing.. if you get the interview before the divorce papers are in hand, ROC will be denied.. i am sure some of our posters who are more knowledgable about this situation will give you good info. 
 

There was a similar thread to yours about a week ago .. maybe try a key word search ..

Edited August 14, 2022 by Lil bear

[OldUser 6,608]

In this situation there are two options AFAIK:

1. Go into counseling and try to repair the marriage by working on issues together. You continue living together in union and if figured things out - great! You're going to be able to file together jointly. 

2. You ensure you're spouse is ok with divorce and not going to make your life harder. You divorce and file for I-751 with divorce waiver. You may be able to provide divorce decree when get RFE later.

 

The tricky part with option 1 is that you can still have serious relationship issues after filing jointly. At this point you may divorce and switch your case to divorce waiver.

 

Problem with option 2 is you may not have divorce finalized by the time you get RFE.

 

In any case, these are just some thoughts from amateur based on reading similar cases. You may want to consult an immigration laywer.

Edited August 14, 2022 by OldUser
typo

[BandBjourney 21]

Just now, OldUser said:

In this situation there are two options AFAIK:

1. Go into counseling and try to repair the marriage by working on issues together. You continue living together in union and if figured things out - great! You're going to be able to file together jointly. 

2. You ensure you're spouse is ok with divorce and not going to make your life harder. You divorce and file for I-75 with divorce waiver. You may be able to provide divorce decree when get RFE later.

 

The tricky part with option 1 is that you can still have serious relationship issues after filing jointly. At this point you may divorce and switch your case to divorce waiver.

 

Problem with option 2 is you may not have divorce finalized by the time you get RFE.

 

In any case, these are just some thoughts from amateur based on reading similar cases. You may want to consult an immigration laywer.

https://www.hummelaw.com/2015/05/08/separated-but-not-divorced-navigating-the-jointly-filed-i-751-petition-to-remove-conditions-on-residence/
 

i found this information and do not know how valid it is but it seems to say that we can apply while separated? I am taking in all advice and am very confused. I cannot afford a lawyer at this time 

[OldUser 6,608]

2 minutes ago, BandBjourney said:

https://www.hummelaw.com/2015/05/08/separated-but-not-divorced-navigating-the-jointly-filed-i-751-petition-to-remove-conditions-on-residence/
 

i found this information and do not know how valid it is but it seems to say that we can apply while separated? I am taking in all advice and am very confused. I cannot afford a lawyer at this time 

Filing jointly while being separated will likely cause serious issues making it impossible to navigate without help from a laywer. Joint filings always have a chance of interview, requring your spouse to be present there with you. How can you guarantee the mood / availability of your spouse if you have a tension in relationship? That's a huge risk to undertake. Sorry to hear what you're going through. Perhaps some other more experienced members of this forum suggest a solution.

[Timona 4,207]

Your window opens soon. Between now and then, you need to figure out if you're gonna be divorced at the end of the day or not. USCIS doesn't consider "separation" as basis of filing. It's either you're married or divorced. 

 

Now, I would suggest filing jointly IF you don't have the divorce decree on hand at time of filing. If the divorce is finalized before ROC is complete, you update that with USCIS and ask to switch to ROC with divorce waiver. If you guys end up reconciling, you have nothing to worry about. However, do not file with divorce waiver now.

 

Even if you start divorce before you send ROC package, file jointly because NY has a long divorce period. You don't want to receive an RFE which you cannot satisfy. 

[Timona 4,207]

You can team up with @sashKOT1 and learn from each other. He/ She just posted the same topic today. 

[Family 3,988]

1 hour ago, BandBjourney said:

This happened last week and is still very fresh. It has been very amicable between us and he wants me to continue living in the US as we share pets and are also generally good friends. He is happy to sign any documents I need for me to stay.

 

Sounds like some pretty drastic decisions have already been made, namely you moving to AZ and him staying in NY.
Not much possibility to argue either of you will be  working on the marriage the moment each spouse lives in a different state, even sharing pet care would be a problem …

Your husband can express he wants a “ separation “ but he also needs to step up to the plate and should not expect to conveniently ship you off to fend for yourself. at a week’s notice. 
 

You should at least contact a few immigration attorneys and family law/ divorce attorneys, before making drastic decisions. Some offer free consults

[BandBjourney 21]

10 minutes ago, Family said:

Sounds like some pretty drastic decisions have already been made, namely you moving to AZ and him staying in NY.
Not much possibility to argue either of you will be  working on the marriage the moment each spouse lives in a different state, even sharing pet care would be a problem …

Your husband can express he wants a “ separation “ but he also needs to step up to the plate and should not expect to conveniently ship you off to fend for yourself. at a week’s notice. 
 

You should at least contact a few immigration attorneys and family law/ divorce attorneys, before making drastic decisions. Some offer free consults

I should have been clear but I will be staying with friends in Arizona so I can get some space. I’m not sure what the future holds with our relationship. Which is why we have not discussed divorce yet. Neither of us can afford to live alone in NY which is why I haven’t just moved into my own apartment while we take space from each other. The only other option was to go to AZ where my friends are located and can support me. 

[Redro 4,611]

1 hour ago, BandBjourney said:

I should have been clear but I will be staying with friends in Arizona so I can get some space. I’m not sure what the future holds with our relationship. Which is why we have not discussed divorce yet. Neither of us can afford to live alone in NY which is why I haven’t just moved into my own apartment while we take space from each other. The only other option was to go to AZ where my friends are located and can support me. 

Is it not possible to maybe move in with some friends or some housemates in NY? 

And if you are planning on moving to Arizona maybe you can file for divorce sooner once you establish residency. 

But, in your current situation I do not see how you can file for ROC, then immediately move to AZ while stating you want to try to save the relationship. 

IMO, you either stay in NY and work on the relationship or move to AZ and file for divorce. 

You need to have another sit down with your spouse because him saying he wants you to stay in the US but asking for a separation (not divorce) right before ROC will make your life extremely complicated (which is why so many have suggested you contact an immigration lawyer). 

Edited August 15, 2022 by ROK2USA

[OldUser 6,608]

26 minutes ago, ROK2USA said:

And if you are planning on moving to Arizona maybe you can file for divorce sooner once you establish residency. 

But, in your current situation I do not see how you can file for ROC, then immediately move to AZ while stating you want to try to save the relationship. 

IMO, you either stay in NY and work on the relationship or move to AZ and file for divorce. 

Very good points made here 👍

 

"To file for divorce in Arizona, you or your spouse must have been a resident of Arizona for at least 90 days before filing for the divorce. "

 

That's shorter timeline than 6 months in California.