Heading towards divorce, simultaneously in the window to file i751. Seeking advice.

[stringtheory 2]

I am the American citizen, my wife is the petitioner. Our marriage started with genuine intentions but it looks like there is no disney ending for us and we are likely to file a no fault, irreconcilable differences divorce. 

 

Her two year green card expires at the end of this December and we had started preparing the 751 paperwork. However, with this potential divorce wrinkle, I want to get some feedback on whether to file jointly still as married or for her to file single with divorce pending.

 

My understanding is we have two choices.

 

Option 1 – file joint i751 and start divorce. Send a waiver after divorce is finalized. Is this a messy process? 

Option 2 – start divorce in immediately and file for waiver i751 as divorced. Would my wife need to send in proof of a pending or finalized divorce? I imagine we would not be able to obtain the finalized paperwork until after her expiration date.

 

I still want to help her obtain her 10 year green card. Any advice would be appreciated.

[OldUser 6,586]

Hi, first of all I'm sorry your marriage isn't working.

 

How long does it take to divorce in your state? When is her I-751 filing deadline? Are you expecting a clean divorce or back and forth splitting assets? 

 

[Boiler 45,434]

You signed the I 864, just a quick reminder.

 

Her Immigration issues are otherwise hers.

[K1visaHopeful 2,809]

#1.

You need to be divorceD to be approved with D waiver as they will eventually ask for a final DD and when she can't produce, she'll have to refile with a waiver afterwards and will be deportation pending until. 

Read the instructions of the I751 and the USCIS Divorce waiver Memo (googlable) for the exact reasons why #1 is the way to go. Or you can join an I751 Divorce Waiver group on FB for the discussion. 

[stringtheory 2]

17 hours ago, OldUser said:

Hi, first of all I'm sorry your marriage isn't working.

 

How long does it take to divorce in your state? When is her I-751 filing deadline? Are you expecting a clean divorce or back and forth splitting assets? 

 

This will be an uncontested divorce so hopefully 3 months to settle everything. The deadline is at the end of this December. 

[stringtheory 2]

17 hours ago, Boiler said:

You signed the I 864, just a quick reminder.

 

Her Immigration issues are otherwise hers.

 

She is working and capable of supporting herself. Do I have additional financial responsibility even after a divorce? We have no kids.

[stringtheory 2]

16 hours ago, K1visaHopeful said:

#1.

You need to be divorceD to be approved with D waiver as they will eventually ask for a final DD and when she can't produce, she'll have to refile with a waiver afterwards and will be deportation pending until. 

Read the instructions of the I751 and the USCIS Divorce waiver Memo (googlable) for the exact reasons why #1 is the way to go. Or you can join an I751 Divorce Waiver group on FB for the discussion. 

 

Thank you for the feedback!

[OldUser 6,586]

1 hour ago, stringtheory said:

 

She is working and capable of supporting herself. Do I have additional financial responsibility even after a divorce? We have no kids.

Only if she uses public benefits and government asks you to reimburse. Very rare.

[OldUser 6,586]

1 hour ago, stringtheory said:

This will be an uncontested divorce so hopefully 3 months to settle everything. The deadline is at the end of this December. 

This is tricky timeline. If she had to file in February-March 2025, then yes you could divorce first she'd file I-751 with divorce waiver. Technically she could still file I-751 late after divorce, but it's a risky one.

 

She could file I-751 two weeks before deadline with divorce waiver. It's unlikely she'd get RFE this soon. If divorce finalization is a month away at that point, she'll likely be OK.

 

I'd say if you guys start divorce ASAP and have it go smooth, she can file I-751 with divorce waiver in December. Worst case if she doesn't have divorce decree then and gets denied, she can refile. It's probably better filing with divorce waiver VS joint filing 3 months before divorce. That looks more like gaming the system to me. One minute you're married, the other one you're not.

 

I'm not a lawyer and this is not a legal advice.

Edited October 12 by OldUser

[Family 3,988]

4 minutes ago, OldUser said:

It's probably better filing with divorce waiver VS joint filing 3 months before divorce. That looks more like gaming the system to me. One minute you're married, the other one you're not.

Great analysis. Gaming the system has potential booby traps …date of separation being just one example. 

[Boiler 45,434]

2 hours ago, stringtheory said:

 

She is working and capable of supporting herself. Do I have additional financial responsibility even after a divorce? We have no kids.

https://www.soundimmigration.com/

 

You can read all about it here.

[Ontarkie 14,205]

~~Moved to Effects of Major Family Changes, from AOS from K1 P&P- the OP is past the K1 AOS stage and similar threads are discussed here.~~

[K1visaHopeful 2,809]

8 hours ago, stringtheory said:

 

She is working and capable of supporting herself. Do I have additional financial responsibility even after a divorce? We have no kids.

To HER? No.

To USCIS? Possibly if she uses public benefits. 

Pull up the I864 form and reread the few reasons that financial responsibility ends for a sponsor. 

Divorce is not one of them. 

6 hours ago, Family said:

Great analysis. Gaming the system has potential booby traps …date of separation being just one example. 

In states where there is no legal separation, final divorce date is what is relevant. You are either married or divorced unless a state offers legal separation. The memo as indicated above explains when one can and should apply with D waiver. The language of it clears up the time period inbetween married and divorced statuses. 

OP doesn't fit criteria to do so at this point. Unless well into the divorce process, it is acceptable to file jointly and amend to a D waiver. Amendment to a waiver can occur at I751 interview even and by then, Final DD should be avaliable.

If not available, peti goes into deportation proceedings (which can take years) but can refile with waiver once DD available. 

[A1987WA 11]

On 10/11/2024 at 8:56 PM, stringtheory said:

I am the American citizen, my wife is the petitioner. Our marriage started with genuine intentions but it looks like there is no disney ending for us and we are likely to file a no fault, irreconcilable differences divorce. 

 

Her two year green card expires at the end of this December and we had started preparing the 751 paperwork. However, with this potential divorce wrinkle, I want to get some feedback on whether to file jointly still as married or for her to file single with divorce pending.

 

My understanding is we have two choices.

 

Option 1 – file joint i751 and start divorce. Send a waiver after divorce is finalized. Is this a messy process? 

Option 2 – start divorce in immediately and file for waiver i751 as divorced. Would my wife need to send in proof of a pending or finalized divorce? I imagine we would not be able to obtain the finalized paperwork until after her expiration date.

 

I still want to help her obtain her 10 year green card. Any advice would be appreciated.

File for divorce if the marriage is not working out. She can remove condition on her own if you guys had a real marriage by providing evidences. Holding marriage to HELP her will trigger immigration fraud and that will cause trouble for both of you.