Wife wants to divorce while pending i-751

[Paul Hanaki 72]

16 minutes ago, Crazy Cat said:

If OP doesn't notify them, he risks them approving the I-751 without an interview., (and without their knowledge about the divorce being filed). That could, likely, cause all kinds of serious problems like misrepresentation when he applies for citizenship.  I think @Mike E's advice is correct.

Not sure how you are getting that information. There is zero requirement to notify the USCIS of any divorce being filed. So it would be great if they approved him before the divorce was final. Only if a divorce is final do you have to notify the USCIS that you are modifying your. 751 to ask for a divorce waiver.  His attorney has stated the same thing. 

[Crazy Cat 41,814]

2 minutes ago, Paul Hanaki said:

Only if a divorce is final do you have to notify the USCIS that you are modifying your. 751 to ask for a divorce waiver.

 Jim Hacking would tell you otherwise.

Edited April 22, 2023 by Crazy Cat

[Paul Hanaki 72]

22 minutes ago, Crazy Cat said:

If OP doesn't notify them, he risks them approving the I-751 without an interview., (and without their knowledge about the divorce being filed). That could, likely, cause all kinds of serious problems like misrepresentation when he applies for citizenship.  I think @Mike E's advice is correct.

From the USCIS instructions for form 751  Notice it says terminated. Filing for divorce doesn't terminate it. Only a final divorce decree does that.- 

If you are still married, then file Form I-751 jointly with your spouse through whom you obtained conditional status. However, you may file Form I-751 without your spouse if:

1. You entered the marriage in good faith, but your spouse subsequently died;

2. You entered the marriage in good faith, but the marriage was later terminated due to divorce or annulment;

3 minutes ago, Crazy Cat said:

 Jim Hacking would tell you otherwise.

Well he would be wrong.

[Mike E 11,739]

23 minutes ago, Paul Hanaki said:

Yes do not file anything with USCIS until you are actually divorced:

Imprudent strategy: 

 

“The statute and regulations require approval of the 1-751 petition if the above conditions are met. USCIS may not deny a petition solely because the spouses are separated and/or have initiated divorce or annulment proceedings.”

 

Some lawyers and apparently you are basing your advice on the above. However the memo goes on to say:

 

“However, legal separation or initiation of divorce or annulment proceedings may suggest that the CPR entered into the marriage for the sole purpose of procuring permanent resident status.”

 

So USCIS is saying a divorce filing during pending I-751 raises suspicion of fraud.

 

“If a Service Center ISO encounters an I-751 petition' jointly filed by co-petitioners who are still married but are legally separated and/or are in pending divorce or annulment proceedings, the ISO issues the CPR

a Request for Evidence with an 87-day response period. In the RFE, the ISO specifically asks the CPR to provide a copy of the final divorce decree or annulment along with a request stating he or she would like to have the joint filing petition treated as a waiver petition. This affords the CPR an opportunity to provide evidence that the proceedings have been finalized and it affords the CPR an opportunity to request a waiver to the joint filing without refiling”

 

How would the ISO learn of pending divorce accept by notifying USCIS?

 

Clearly, USCIS is saying proactive notice of a pending divorce is likely to remove / reduce the cloud of suspicion.

 

Otherwise the cloud of suspicion gathers when the CPR comes to the attention of USCIS again, such as when filing I-130

or N-400. We see this periodically on visajourney.com and Reddit. 
 

On 4/20/2023 at 6:43 PM, zDarkAngelz said:

I just talked to my lawyer.

She said that I should wait until I get the divorce decree, then notify USCIS. Then, act according to USCIS's response.

 

If I get lucky and get approved before receiving the divorce decree, then I don't have to do anything.

Ask your lawyer if she is aware of the memo I linked.

 

[Crazy Cat 41,814]

7 minutes ago, Paul Hanaki said:

Well he would be wrong.

 

He isn't wrong.

 

Filing I-751 While Living Separately | Scott D. Pollock & Associates, P.C. (lawfirm1.com)

Filing I-751 While Living Separately

Can I File Form I-751 Living Separately from My Spouse?

When you are originally a foreign national who came to the United States to marry a U.S. citizen or Lawful Permanent Resident (LPR), you will have already been through the process of getting a conditional green card.  After two years, you must file Form I-751 with the United States Citizenship and Immigration Services (USCIS) to petition to remove conditions on residence. Upon approval of your petition, you will be granted permanent residency without conditions.

The purpose of the conditional green card is to prove to USCIS that your marriage is still in good faith after the original two years are up. However, circumstances can happen in life and in your marriage that cause you and your spouse to separate. Maybe you do not want a divorce at this time, or maybe you still need to discuss the option of divorce with your partner.

It is important that you be upfront and honest throughout the entire process of filing Form I-751 with USCIS. Being truthful about the separation shows USCIS that you are trustworthy. If you withhold information or are dishonest about your separation, you could potentially be flagged for immigration fraud. You may lose your green card and your chance at future permanent residency. Honesty about your separation will only benefit you in the long run, especially since USCIS is not legally allowed to deny your petition on the mere fact that you are separating or have initiated a divorce.

Edited April 22, 2023 by Crazy Cat

[Paul Hanaki 72]

5 minutes ago, Mike E said:

Imprudent strategy: 

 

 

“The statute and regulations require approval of the 1-751 petition if the above conditions are met. USCIS may not deny a petition solely because the spouses are separated and/or have initiated divorce or annulment proceedings.”

 

Some lawyers and apparently you are basing your advice on the above. However the memo goes on to say:

 

“However, legal separation or initiation of divorce or annulment proceedings may suggest that the CPR entered into the marriage for the sole purpose of procuring permanent resident status.”

 

So USCIS is saying a divorce filing during pending I-751 raises suspicion of fraud.

 

“If a Service Center ISO encounters an I-751 petition' jointly filed by co-petitioners who are still married but are legally separated and/or are in pending divorce or annulment proceedings, the ISO issues the CPR

a Request for Evidence with an 87-day response period. In the RFE, the ISO specifically asks the CPR to provide a copy of the final divorce decree or annulment along with a request stating he or she would like to have the joint filing petition treated as a waiver petition. This affords the CPR an opportunity to provide evidence that the proceedings have been finalized and it affords the CPR an opportunity to request a waiver to the joint filing without refiling”

 

How would the ISO learn of pending divorce accept by notifying USCIS?

 

Clearly, USCIS is saying proactive notice of a pending divorce is likely to remove / reduce the cloud of suspicion.

 

Otherwise the cloud of suspicion gathers when the CPR comes to the attention of USCIS again, such as when filing I-130

or N-400. We see this periodically on visajourney.com and Reddit. 
 

Ask your lawyer if she is aware of the memo I linked.

 

 Did you even read that. Specifically they are saying don't request a waiver unless your divorce is final otherwise your waiver will be denied. They also say "

USCIS may not deny a petition solely because the spouses are separated andlor have initiated divorce or annulment proceedings"   It is against forum rules to say bad stuff about other members but please don't give bad advice to people when it appears you don't know the subject at all. 

 

 

[Paul Hanaki 72]

6 minutes ago, Crazy Cat said:

 

 

Can I File Form I-751 Living Separately from My Spouse?

When you are originally a foreign national who came to the United States to marry a U.S. citizen or Lawful Permanent Resident (LPR), you will have already been through the process of getting a conditional green card.  After two years, you must file Form I-751 with the United States Citizenship and Immigration Services (USCIS) to petition to remove conditions on residence. Upon approval of your petition, you will be granted permanent residency without conditions.

The purpose of the conditional green card is to prove to USCIS that your marriage is still in good faith after the original two years are up. However, circumstances can happen in life and in your marriage that cause you and your spouse to separate. Maybe you do not want a divorce at this time, or maybe you still need to discuss the option of divorce with your partner.

It is important that you be upfront and honest throughout the entire process of filing Form I-751 with USCIS. Being truthful about the separation shows USCIS that you are trustworthy. If you withhold information or are dishonest about your separation, you could potentially be flagged for immigration fraud. You may lose your green card and your chance at future permanent residency. Honesty about your separation will only benefit you in the long run, especially since USCIS is not legally allowed to deny your petition on the mere fact that you are separating or have initiated a divorce.

For one he has already filed I-751. Second no one has suggested he lie to USCIS about the pending divorce. If he has an interview he should bring his still spouse and be honest that they are in divorce procedures. You are reading all the information you have posted wrong. 

[Mike E 11,739]

5 minutes ago, Paul Hanaki said:

USCIS may not deny a petition solely because the spouses are separated andlor have initiated divorce or annulment proceedings"

If you are going to re-quote things   I’ve already quoted, you are wasting resources.

 

7 minutes ago, Paul Hanaki said:

Specifically they are saying don't request a waiver unless your divorce is final otherwise your waiver will be denied

It does not say that. It says:

 

17 minutes ago, Mike E said:

This affords the CPR an opportunity to provide evidence that the proceedings have been finalized and it affords the CPR an opportunity to request a waiver to the joint filing without refiling”

 

10 minutes ago, Paul Hanaki said:

It is against forum rules to say bad stuff about other members but please don't give bad advice to people when it appears you don't know the subject at all. 

I am well versed in the topic. You are at strike 2.

[Mike E 11,739]

15 minutes ago, Paul Hanaki said:

It is against forum rules to say bad stuff about other members but please don't give bad advice to people when it appears you don't know the subject at all. 

That’s ironic since you have previously asked an I-751 question and you seemed to have no problem with my answer:

 

 

[Paul Hanaki 72]

2 minutes ago, Mike E said:

If you are going to re-quote things   I’ve already quoted, you are wasting resources.

 

It does not say that. It says:

 

 

I am well versed in the topic. You are at strike 2.

Yes specifically in the memo it says the waiver will be denied because they are not divorced. That memo is telling people do not file a waiver unless you are actually divorced as there is nothing USICS can do with it. There are only waivers for people that are divorced not people who have started divorce procedures. All you will do is cause them to send you an RFE asking for a decree you don't have. The best course of action is to wait for the divorce to be final and then immediately notify USCIS and request a waiver.  It is amazing all the bad advice on this topic. Good thing the person has an attorney who instructed them correctly. 

[Mike E 11,739]

Just now, Paul Hanaki said:

That memo is telling people do not file a waiver unless you are actually divorced as there is nothing USICS can do with it.

Quote where the memo says that.

[OldUser 6,616]

1 hour ago, Paul Hanaki said:

There is zero requirement to notify the USCIS of any divorce being filed. So it would be great if they approved him before the divorce was final. Only if a divorce is final do you have to notify the USCIS that you are modifying your.

Not a smart move. This is a huge fraud indicator that can result in USCIS accusing LPR of misrepresentation and resulting in potential loss of immigration benefits.

[Paul Hanaki 72]

46 minutes ago, OldUser said:

Not a smart move. This is a huge fraud indicator that can result in USCIS accusing LPR of misrepresentation and resulting in potential loss of immigration benefits.

I think you are mistaken in either your beliefs or what was actually written. Not writing to USCIS and telling them every detail that has changed in your life isn't fraud. Nor is anyone misrepresenting anything. Not sure why so many people believe that. The only requirement is if you actually get divorced that you notify USCIS immediately and change your 751 to file without a spouse and request a waiver. It is the same thing if your spouse is dying. You don't need to notify USCIS your spouse is dying. You have to contact them immediately after death to change your 751 to file without a spouse. 

 

It is only fraud or misrepresentation if you do not notify USCIS that your divorce is final or lie during your interview and make them think you are in a happy marriage.

 

Once again not notifying USCIS about a pending divorce is the smart thing to do. It is paperwork they didn't request. They don't care if your marriage is on the rocks they care that your marriage was entered into without fraud. If you request a waiver before your divorce is final they will deny it.  

 

Once again I am glad this person has an attorney and is not listening to people who advice him to contact USCIS.

[Crazy Cat 41,814]

11 minutes ago, Paul Hanaki said:

Not writing to USCIS and telling them every detail that has changed in your life isn't fraud.

No one has even implied that.  You're just being dramatic.

 

12 minutes ago, Paul Hanaki said:

If you request a waiver before your divorce is final they will deny it.  

That isn't true.  As long as he can submit a final divorce decree and other requested information prior to the date required on an RFE, he is fine.  

 

What happens if the jointly filed I-751 is approved (without an interview) after filing for divorce, but before the final decree is issued???  Would you notify USCIS then, or would you wait and reveal that during your N-400 interview (under the 5 year rule, of course)???

[Paul Hanaki 72]

7 minutes ago, Crazy Cat said:

No one has even implied that.  You're just being dramatic.

 

That isn't true.  As long as he can submit a final divorce decree and other requested information prior to the date required on an RFE, he is fine.  

 

What happens if the jointly filed I-751 is approved (without an interview) after filing for divorce, but before the final decree is issued???  Would you notify USCIS then, or would you wait and reveal that during your N-400 interview (under the 5 year rule, of course)???

Did you not even read the memo. It is an 87 day extension for people that file a 751 for a divorce waiver without a divorce. A final decree can take a month or it can take a year depending on the area. So after 87 days it is denied.  Once again though USCIS does not want you to file a waiver without a final decree. If they did then they would state that in the instructions. 

 

If they are approved without an interview before a final decree then they get their 10 year green card. I am so confused as to why you think the filing of a divorce is the same thing as getting a divorce. Heck people change their mind all the time and she could withdraw the petition for divorce.  if he is approved after the divorce is final and before.changing his 751 and requesting a waiver he should immediately contact USISC and put in the correct paperwork as that green card isn''t valid.