Extension on I-751 for divorce

[rcrawford 0]

My wife and I separated last June after 2 years of marriage and are currently beginning divorce procedures (in South Carolina you have to be separated for a year before you can file an uncontested divorce). However, my window for removing conditions on my residency is between 16th June and the 16th September. If our divorce is not finalised before September, can I file for an extension on the I-751 or do we need to file jointly, as we will still be legally married? Thanks a lot. Any advice would be much appreciated.

[diadromous mermaid 36]

My wife and I separated last June after 2 years of marriage and are currently beginning divorce procedures (in South Carolina you have to be separated for a year before you can file an uncontested divorce). However, my window for removing conditions on my residency is between 16th June and the 16th September. If our divorce is not finalised before September, can I file for an extension on the I-751 or do we need to file jointly, as we will still be legally married? Thanks a lot. Any advice would be much appreciated.

No extensions permitted. You'll have to file together and then when the divorce is finalised, replace the jointly filed I-751 with a waiver.

[Yaads 0]

What happens if the spouse isn't willing to file together?

[rcrawford 0]

No extensions permitted. You'll have to file together and then when the divorce is finalised, replace the jointly filed I-751 with a waiver.

I don't know why I thought an extension could be granted. Thanks for your help. What do you mean by 'replace the jointly filed I-751 with a waiver'? How would that work? Also, I assume that I should be honest about the nature of our relationship. I mean, do I need to pretend that we are still a happily married couple in order to have the conditions of my residency removed? I'm thinking that can't be the case. Thanks again for your help.

[rcrawford 0]

No extensions permitted. You'll have to file together and then when the divorce is finalised, replace the jointly filed I-751 with a waiver.

I don't know why I thought an extension could be granted. Thanks for your help. What do you mean by 'replace the jointly filed I-751 with a waiver'? How would that work? Also, I assume that I should be honest about the nature of our relationship. I mean, do I need to pretend that we are still a happily married couple in order to have the conditions of my residency removed? I'm thinking that can't be the case. Thanks again for your help.

EDIT: I just read this from this BCIS memo (PDF):

As such, an alien whose conditional resident status is approaching the 2-year anniversary

of the grant of such status, but who is unable to file a joint petition to remove the conditions

because divorce or annulment proceedings have commenced, may not apply for a waiver of the

joint filing requirement based on the ìgood faithî exception. If an alienís conditional resident

status is terminated because he or she could not timely file a Form I-751, and he or she is placed

in removal proceedings, then he or she may request a continuance from the immigration judge to

allow for the finalization of the divorce or annulment proceedings. It is noted that the

conditional resident whose status has been terminated should be issued a temporary I-551 during

the pendency of his or her case before the immigration judge (see Genco Opinion 96-12).

So it sounds like, if my divorce is not final by September, I will be placed in removal proceedings and have to request a continuance from the immigration judge? That sounds pretty scary. Any thoughts? Thanks.

[diadromous mermaid 36]

No extensions permitted. You'll have to file together and then when the divorce is finalised, replace the jointly filed I-751 with a waiver.

I don't know why I thought an extension could be granted. Thanks for your help. What do you mean by 'replace the jointly filed I-751 with a waiver'? How would that work? Also, I assume that I should be honest about the nature of our relationship. I mean, do I need to pretend that we are still a happily married couple in order to have the conditions of my residency removed? I'm thinking that can't be the case. Thanks again for your help.

EDIT: I just read this from this BCIS memo (PDF):

As such, an alien whose conditional resident status is approaching the 2-year anniversary

of the grant of such status, but who is unable to file a joint petition to remove the conditions

because divorce or annulment proceedings have commenced, may not apply for a waiver of the

joint filing requirement based on the ìgood faithî exception. If an alienís conditional resident

status is terminated because he or she could not timely file a Form I-751, and he or she is placed

in removal proceedings, then he or she may request a continuance from the immigration judge to

allow for the finalization of the divorce or annulment proceedings. It is noted that the

conditional resident whose status has been terminated should be issued a temporary I-551 during

the pendency of his or her case before the immigration judge (see Genco Opinion 96-12).

So it sounds like, if my divorce is not final by September, I will be placed in removal proceedings and have to request a continuance from the immigration judge? That sounds pretty scary. Any thoughts? Thanks.

If not divorced at the time the I-751 is to be filed, an alien can do one of two things:

1. File jointly with the USC spouse, and then withdraw that jointly filed I-751 when the marriage has been legally terminated. The alien would replace the jointly filed petition with a self-petition or waiver. The waiver utilises the same form I-751, but box "d" is checked.

2. Attempt to terminate the marriage expeditiously, so that a waiver (self-petition) can be filed once a divorce decree is available. Note, if the 90-day timeframe expires while an alien is awaiting a divorce decree, technnically, the alien is out of status. All benefits associated with status end at that point in time. Yes, while in this stage an alien can conceivable be subject to removal, but if the alien receives an NTA (Notice to Appear) for Removal Proceedings, the alien can then ask for a continuance if the alien can demonstrate that failure to file the I-751 petition to remove conditions was due to a divorce that was not yet finalised.

If the spouse is not willing to cooperate and file a joint petition to remove conditions, then the alien should consult with a competent immigration attorney to ask about his or her options. More often than not those options include:

1. Do as number 2 above instructs

2. File a waiver claiming abuse

[rcrawford 0]

If not divorced at the time the I-751 is to be filed, an alien can do one of two things:

1. File jointly with the USC spouse, and then withdraw that jointly filed I-751 when the marriage has been legally terminated. The alien would replace the jointly filed petition with a self-petition or waiver. The waiver utilises the same form I-751, but box "d" is checked.

2. Attempt to terminate the marriage expeditiously, so that a waiver (self-petition) can be filed once a divorce decree is available. Note, if the 90-day timeframe expires while an alien is awaiting a divorce decree, technnically, the alien is out of status. All benefits associated with status end at that point in time. Yes, while in this stage an alien can conceivable be subject to removal, but if the alien receives an NTA (Notice to Appear) for Removal Proceedings, the alien can then ask for a continuance if the alien can demonstrate that failure to file the I-751 petition to remove conditions was due to a divorce that was not yet finalised.

If the spouse is not willing to cooperate and file a joint petition to remove conditions, then the alien should consult with a competent immigration attorney to ask about his or her options. More often than not those options include:

1. Do as number 2 above instructs

2. File a waiver claiming abuse

Thanks a lot. That's very helpful. If I chose to file jointly with my wife, would the fact that we have different home addresses not cause problems? When you say that the alien would 'replace' the jointly filed petition with a waiver, is that just a case of mailing the waiver with the updated information to the USCIS? I am hoping that my divorce will be final by September anyway. Thanks again for your help.

[diadromous mermaid 36]

If not divorced at the time the I-751 is to be filed, an alien can do one of two things:

1. File jointly with the USC spouse, and then withdraw that jointly filed I-751 when the marriage has been legally terminated. The alien would replace the jointly filed petition with a self-petition or waiver. The waiver utilises the same form I-751, but box "d" is checked.

2. Attempt to terminate the marriage expeditiously, so that a waiver (self-petition) can be filed once a divorce decree is available. Note, if the 90-day timeframe expires while an alien is awaiting a divorce decree, technnically, the alien is out of status. All benefits associated with status end at that point in time. Yes, while in this stage an alien can conceivable be subject to removal, but if the alien receives an NTA (Notice to Appear) for Removal Proceedings, the alien can then ask for a continuance if the alien can demonstrate that failure to file the I-751 petition to remove conditions was due to a divorce that was not yet finalised.

If the spouse is not willing to cooperate and file a joint petition to remove conditions, then the alien should consult with a competent immigration attorney to ask about his or her options. More often than not those options include:

1. Do as number 2 above instructs

2. File a waiver claiming abuse

Thanks a lot. That's very helpful. If I chose to file jointly with my wife, would the fact that we have different home addresses not cause problems? When you say that the alien would 'replace' the jointly filed petition with a waiver, is that just a case of mailing the waiver with the updated information to the USCIS? I am hoping that my divorce will be final by September anyway. Thanks again for your help.

Joint filing is not necessarily a represention that the couple are living together (although the evidence that they did reside together would be part of the submission) but rather it represents that the couple are requesting that the statutory conditions placed on permanent residency at the time of the adjustment of status be removed, since the marriage was and is genuine or bonafide. If the parties are residing separately, then they should so declare, although I have seen cases where an alien still records the marital home as a permanent residence during a period of separation, this, naturally depends upon the state divorce laws as well.

When the alien has submitted a joint petition, and then terminates the marriage, legally, he or she would then replace that joint petition with a waiver. That is done simply by sending in another I-751 form with the appropriate box checked, copy of divorce decree and the evidence (yes, all the evidence all over again) and the fee. A cover letter attached to the waiver, signed by the alien could serve as a withdrawal of the pending joint petition. A simple reference to the INA Section 216, alerting the USCIS to the fact that the marriage was legitimate and is now legally terminated, would serve as the reason for the resubmission and the basis for withdrawal.

[rcrawford 0]

Joint filing is not necessarily a represention that the couple are living together (although the evidence that they did reside together would be part of the submission) but rather it represents that the couple are requesting that the statutory conditions placed on permanent residency at the time of the adjustment of status be removed, since the marriage was and is genuine or bonafide. If the parties are residing separately, then they should so declare, although I have seen cases where an alien still records the marital home as a permanent residence during a period of separation, this, naturally depends upon the state divorce laws as well.

When the alien has submitted a joint petition, and then terminates the marriage, legally, he or she would then replace that joint petition with a waiver. That is done simply by sending in another I-751 form with the appropriate box checked, copy of divorce decree and the evidence (yes, all the evidence all over again) and the fee. A cover letter attached to the waiver, signed by the alien could serve as a withdrawal of the pending joint petition. A simple reference to the INA Section 216, alerting the USCIS to the fact that the marriage was legitimate and is now legally terminated, would serve as the reason for the resubmission and the basis for withdrawal.

Thanks again for your help. I would be interested to know if you have talked to anyone in a similar situation and what they did. Do you know of cases where the alien has filed jointly while in divorce proceedings? And if so, were such cases successful? I am concerned by this part of the above memo:

'...an alien whose conditional resident status is approaching the 2-year anniversary of the grant of such status, but who is unable to file a joint petition to remove the conditions because divorce or annulment proceedings have commenced, may not apply for a waiver of the joint filing requirement based on the 'good faith' exception.'

That would suggest to me that, if divorce proceedings have commenced, the alien is unable to file a joint petition. But then, you have far more experience than me and perhaps you know of such cases.

This also raises problems concerning affadavits of support. I plan to include affadavits signed by my father-in-law and my brother-in-law's wife with my I-751 confirming that my relationship with my wife was geniuine. It might be a small point but I can't ask these people to write that 'Richard and Erin are a happily married couple' if the truth is that 'Richard and Erin were a happily married couple'. This might raise some troubling questions with the CIS. That might be a question for another forum but I would appreciate any thoughts. Thanks again.

[diadromous mermaid 36]

Joint filing is not necessarily a represention that the couple are living together (although the evidence that they did reside together would be part of the submission) but rather it represents that the couple are requesting that the statutory conditions placed on permanent residency at the time of the adjustment of status be removed, since the marriage was and is genuine or bonafide. If the parties are residing separately, then they should so declare, although I have seen cases where an alien still records the marital home as a permanent residence during a period of separation, this, naturally depends upon the state divorce laws as well.

When the alien has submitted a joint petition, and then terminates the marriage, legally, he or she would then replace that joint petition with a waiver. That is done simply by sending in another I-751 form with the appropriate box checked, copy of divorce decree and the evidence (yes, all the evidence all over again) and the fee. A cover letter attached to the waiver, signed by the alien could serve as a withdrawal of the pending joint petition. A simple reference to the INA Section 216, alerting the USCIS to the fact that the marriage was legitimate and is now legally terminated, would serve as the reason for the resubmission and the basis for withdrawal.

Thanks again for your help. I would be interested to know if you have talked to anyone in a similar situation and what they did. Do you know of cases where the alien has filed jointly while in divorce proceedings? And if so, were such cases successful? I am concerned by this part of the above memo:

'...an alien whose conditional resident status is approaching the 2-year anniversary of the grant of such status, but who is unable to file a joint petition to remove the conditions because divorce or annulment proceedings have commenced, may not apply for a waiver of the joint filing requirement based on the 'good faith' exception.'

That would suggest to me that, if divorce proceedings have commenced, the alien is unable to file a joint petition. But then, you have far more experience than me and perhaps you know of such cases.

This also raises problems concerning affadavits of support. I plan to include affadavits signed by my father-in-law and my brother-in-law's wife with my I-751 confirming that my relationship with my wife was geniuine. It might be a small point but I can't ask these people to write that 'Richard and Erin are a happily married couple' if the truth is that 'Richard and Erin were a happily married couple'. This might raise some troubling questions with the CIS. That might be a question for another forum but I would appreciate any thoughts. Thanks again.

If your interpretation of the language were to be the case, surely it would state...

'...an alien whose conditional resident status is approaching the 2-year anniversary of the grant of such status, IS unable to file a joint petition to remove the conditions because divorce or annulment proceedings have commenced, AND may not apply for a waiver of the joint filing requirement based on the 'good faith' exception.'

Your affidavits from members of your wife's family could be truthful. Just because a marriage ends it does not mean that it was not genuine.

[rcrawford 0]

Ok thanks. Finally, if I filed jointly, couldn't they call us both in for an interview? Now I still get on well with my ex but I think she'd draw the line at pretending to be my happy wife in front of the USCIS. Again, any thoughts? And, again, I really appreciate your help.

[diadromous mermaid 36]

Ok thanks. Finally, if I filed jointly, couldn't they call us both in for an interview? Now I still get on well with my ex but I think she'd draw the line at pretending to be my happy wife in front of the USCIS. Again, any thoughts? And, again, I really appreciate your help.

Yes, and if you are still married and your US spouse were willuing she'd attend with you. Should she decide not to attend, you'd have to explain that your in the process of divorce. Frankly, if willing to sign the joint petition, I can't see a reason why she'd not attend with you. You don't have to pretend to be happily married. The joint petition is rather a statement that the marriage was bonafide.