Divorce decree issued after temporary gc expiration (merged)

[prettylilraindrop 3]

Hi everyone, I have a temporary green card that expires February next year. I am still currently married, however getting a divorce soon but have to wait until Novemver for the year's minimum separation that my state requires for the divorce. How will this effect my green card status and what steps should I take? I'm aware I have to apply for the removal of conditions 90 days before it expires, but due to having to wait until November to file for divorce, I am worried about what this will mean for the visa process?

 

I hope I explained this well. Thank you everyone in advance for your help.

[Crazy Cat 41,845]

You will have to file your I-751 with a divorce waiver.  When do you expect a final divorce decree?

[beloved_dingo 1,976]

Since your green card expires in February 2023, it sounds like your 90 day window opens around the same time as you are legally able to file for divorce. I believe you have two options here:

• File a joint I-751 before you file for divorce, then update USCIS that you are switching to divorce waiver after the divorce is underway 
• File an individual I-751 after you file for divorce, and provide the divorce decree to USCIS once you have it (or in response to their RFE requesting it). 

I think there are pros and cons to both of these. If the divorce is fairly quick, there's not much to worry about either way because you'll get the divorce decree in hand and be able to send it off to USCIS quickly regardless of how you originally filed (joint or individual). But if there's a chance the divorce process can drag on a long time, it gets a little tricky because a) you don't want to get an approval on a joint petition if you end up divorced before USCIS is notified but b) you also don't want USCIS to issue an RFE for the divorce decree too soon and miss the deadline to respond because you don't have the decree yet. 

 

Maybe @mindthegap can offer some insight. 

[Timona 4,207]

Unless you have divorce decree on hand before I-751 filing OR you're sure the divorce will be done within atleast 6 months from November (April 23), I would file as joint and update USCIS as once I get the divorce certificate. 

 

I wouldn't suggest filing divorce waiver now incase divorce drags, you end up getting an RFE that you cannot furnish and ultimately get your ROC denied and you have to start a fresh. With that, you'd have wasted time and $$$.

[Crazy Cat 41,845]

33 minutes ago, beloved_dingo said:

Since your green card expires in February 2023, it sounds like your 90 day window opens around the same time as you are legally able to file for divorce. I believe you have two options here:

• File a joint I-751 before you file for divorce, then update USCIS that you are switching to divorce waiver after the divorce is underway 
• File an individual I-751 after you file for divorce, and provide the divorce decree to USCIS once you have it (or in response to their RFE requesting it). 

I think there are pros and cons to both of these. If the divorce is fairly quick, there's not much to worry about either way because you'll get the divorce decree in hand and be able to send it off to USCIS quickly regardless of how you originally filed (joint or individual). But if there's a chance the divorce process can drag on a long time, it gets a little tricky because a) you don't want to get an approval on a joint petition if you end up divorced before USCIS is notified but b) you also don't want USCIS to issue an RFE for the divorce decree too soon and miss the deadline to respond because you don't have the decree yet. 

 

Maybe @mindthegap can offer some insight. 

 I'm not sure I would want to file a joint I-751 at that point if a divorce is inevitable.  I wouldn't be comfortable saying it is a joint I-751.  I think I would wait and file with a waiver just before the Green Card expiration date in February.  Just my thoughts out loud..  LOL.

Edited August 4, 2022 by Crazy Cat

[Crazy Cat 41,845]

The timing of events makes this one tougher to call, imo.  

[Wuozopo 4,293]

2 hours ago, prettylilraindrop said:

I'm aware I have to apply for the removal of conditions 90 days before it expires,

You don’t HAVE to apply 90 days before. It’s just the earliest date you are allowed to apply. You can apply in February as long as it arrives at USCIS before the GC expiration date. Get your application and evidence prepared and wait until you know more about the divorce situation.  The later you apply, the more time you have to stall receiving an RFE for the final decree. 

Edited August 4, 2022 by Wuozopo

[mindthegap 2,590]

Everyone who has posted so far has missed one crucial factoid: You only have to file within the 90 day period with a joint filing. 
For a divorce or other waiver filing you do not have to, and you can file at any time before, during or after that window (at least, any time before an immigration judge terminates your residency, but as we are probably talking a matter of months here, that isn’t going to be an issue) without penalty and it is not classed as late. In other words, you don’t need an excuse or reason beyond ticking the waiver box instead of joint. 

Did you read the I-751 instructions? It’s explicitly stated in there that this is the case:

 

If you know with some reasonable degree of certainty how long the divorce will take, you can work it out from there. If it’s done and dusted in a couple of months by the time your card expires that makes it even easier, as filing a divorce file petition with a divorce waiver off the bat is way less hassle than filing a joint one and then switching it at a later date.

Even if it’s not done by the card expiry I’d also say it’s possibly worth holding off those extra months and then filing it outside of that window as a waiver off the bat too for less hassle, but then you may have to deal with the receipt of a letter of denial at some point prior to filing (which despite the wording of the letter does not terminate your status, right to work or travel, or anything of the sort). 
If you are certain of the timeline you can always file a waiver filing before expiry of your card, and then provide the final divorce when you receive an RFE for it… you do not have to be fully divorced to FILE a waiver filing, but you MUST be fully divorced for it to be approved, and for it to continue once asked for it. Standard RFE response time is 87/90 days…and who knows if they will send it out quickly or slowly. 

The choice is yours. 

Edited August 5, 2022 by mindthegap

[Family 3,988]

11 minutes ago, mindthegap said:

If you know with some reasonable degree of certainty how long the divorce will take, you can work it out from there. If it’s done and dusted in a couple of months by the time your card expires that makes it even easier, as filing a divorce file petition with a divorce waiver off the bat is way less hassle than filing a joint one and then switching it at a later date.

Even if it’s not done by the card expiry I’d also say it’s possibly worth holding off those extra months and then filing it outside of that window as a waiver off the bat too for less hassle, but then you may have to deal with the receipt of a letter of denial at some point prior to filing (which despite the wording of the letter does not terminate your status, right to work or travel, or anything of the sort). 

The choice is yours. 

What he said.

Plus you DO NOT have the choice to file Joint while separated with intentions of divorce…

and filing w Divorce Waiver BEFORE you have a Final Decree in your hand does nothing but generate an RFE for the final decree. 
 

Do gather as much evidence of your married life asasp and if you are on civil terms w soon-to-be-ex, ask if she will write a Letter stating you had a real marriage…

 

[prettylilraindrop 3]

On 8/4/2022 at 9:48 PM, Family said:

What he said.

Plus you DO NOT have the choice to file Joint while separated with intentions of divorce…

and filing w Divorce Waiver BEFORE you have a Final Decree in your hand does nothing but generate an RFE for the final decree. 
 

Do gather as much evidence of your married life asasp and if you are on civil terms w soon-to-be-ex, ask if she will write a Letter stating you had a real marriage…

 

Thank you so much for this information. What would work as evidence of the marriage? I have joint bank statements showing we had a joint account, pictures etc. What else would be needed?

[OldUser 6,640]

2 hours ago, prettylilraindrop said:

Thank you so much for this information. What would work as evidence of the marriage? I have joint bank statements showing we had a joint account, pictures etc. What else would be needed?

As much as possible. Bills in both names, insurance, 401k plans with spouse beneficiary, plane tickets in both names, rental agreement with both names or property deed if you own your house. Joint memberships, kids birth certificates etc.

[da95826 387]

On 8/4/2022 at 11:26 AM, prettylilraindrop said:

Hi everyone, I have a temporary green card that expires February next year. I am still currently married, however getting a divorce soon but have to wait until Novemver for the year's minimum separation that my state requires for the divorce. How will this effect my green card status and what steps should I take? I'm aware I have to apply for the removal of conditions 90 days before it expires, but due to having to wait until November to file for divorce, I am worried about what this will mean for the visa process?

File for the i751 divorce waiver case whenever you can hopefully at the time you get your divorce decree.

 

Right now you need to collect and maintain proof of your bona fide marriage from marriage to separation. You need to show you had a shared a home with a common address provide a copy of a joint lease or mortgage, provide some mail to common address sent to each of you home address, W2/1099 forms for each of you will have home addresses on them, state ID with common address for each, affidavit affirming you live together in a shared home if needed. You need to show shared finances  with joint bank statements that show you were both paying for common bills and placing money earned into bank accounts throughout marriage.  Joint bills, Joint tax returns IRS transcripts, insurance together… collect financial statements and bills throughout the marriage until separation. Collect things you did as a couple, travel, photos together on holiday, photos together with family, kids birth documents, any big purchases together. If possible you can obtain an affidavit from your spouse indicating that that the marriage was bona fide but it just did not work out. 

 

It is a good time to collect and preserve your evidence needed for your i751 divorce waiver application.

[Vega007 62]

Not sure if its helpful. I did my ROC last year in Sept after my divorce. I had an attorney filed for me and he mostly asked for paperwork that showed financial co-mingling. Joint bank account, cosign loans, his name on my car before I refinance, 401k, taxes, rental agreement. 

[prettylilraindrop 3]

I am currently going through a divorce and have my court day february 9th, it’s a simple uncontested divorce so the divorce should be finalised and I should receive the divorce decree that day. However, my conditional green card expires february second. Im aware for the removal of conditions I would have to submit the divorce waiver with the decree, but as it expires before I will receive this, what should I do? Im not wanting to do anything that would jeopardise the visa is anyway. Thanks I’m advance for your help! 

[milimelo 4,477]

File before deadline and wait for RFE. By the time RFE arrives, you'll have divorce decree in hands. You could even file tomorrow - check the divorce option. You'll get the 24 month extension before they get you an RFE. Once you know which office has your file, you can proactively send a copy of divorce decree while waiting for RFE.