Just filed for I-751 to remove conditions, got my biometrics done day before and now separated

[iPhoner 0]

I married my US Citizen husband in April 2008 and moved to the US in October 2008. Our marriage has had a roller coaster ride but somehow I managed to adjust as much as possible. We were a happy couple together and had a brilliant married life, we filed for I-751 to remove the conditions on my green card 1.5 months back and I received a biometrics appointment letter after a couple weels. Just around that time I found out my husband is having an affair with his coworker and stumbled upon dirty text messages that they shared with each other as well as intimate emails. I could not bear it and I moved out of our house last week saturday and currently living on my own in an apartment with 2 other female roommates. I just got my biometrics done last week and I didn't know if I should have even gotten it done considering that we are separated (not legally though). What are the next steps I should take right now?

All this mess has already ruined my personal life and it is also going to mess my career as well for no fault of mine I will be deported now because he is having an affair. I was just wondering if I would ever get my unconditional permanent resident card or is it over? What if we are called for an interview? (None of us have filed for a divorce yet). What should I do now? I have worked very hard for 2 years to be eligible for a study program and saved up 1000's of dollars for this study program on my own and have enrolled in it. I have paid all that money for admission and I won't get that money back. The exam is in December 2011 and until then I cannot move out of the US. So if I get deported right now all that hard work will go waste as well. I don't want to live with him for the sake of the greencard either. What should I do?

[simel1110 4]

Living with him for the sake of a GC would be fraud, so I'm glad you're not willing to do that.

I see this question a lot lately. I don't know what exactly you're supposed to do, personally since I fear anything coming back on me I would opt to tell the USCIS and let them decide what to do. Others on threads say to wait it out in case of reconciliation.

If you do get an interview you would have to tell them you are living separately. If you divorce as it seems you're heading, you just have to show you entered the marriage in good faith if you refile the I751 waiver.

Edited June 19, 2011 by simel1110

[simel1110 4]

Also, there are a few threads if you scan down the list on the ROC forum here. Much advice to be had on there. Sorry about your predicament.

[Casprd 167]

My understanding is that you should be able to remove conditions still. You can demonstrate that you entered the marriage in good faith and document your husbands infidelity. Some others can speak to the specifics of what you will need to do but your situation is not that uncommon unfortunately.

[Kathryn41 3,205]

Yes, you are able to remain in the US and apply to remove conditions on your own. You won't be deported and you will have time to complete your study program. If the marriage is irretrievably broken down and you do not think you two will reconcile (only you know if that is possible but you may find marriage counseling a possible option to consider), then what you would do is re-submit the I-751 application, and at the bottom apply for a waiver from the joint filing condition to say you are filing on your own. Include a copy of the NOA1 for the first I-751 along with any evidence you wish to include to give the reasons why you are requesting them to withdraw the first application and submit this one in its place. You can re-submit the supporting documentation that you included with the first application to show that you entered the marriage in good faith. Be sure to write on the front of the application and on the front of the envelope 'I-751 petition to replace previously filed I-751 and include the receipt number. That should help get it matched up to the petition you already have on file.

This second petition that you are filing will also initiate an RFE request when the adjudicator gets around to reviewing it for a divorce decree. If you have it in place by that time you can send it back with the RFE. Sometimes states have waiting periods, however, so you may not have the divorce finished by that time. In this case, you would respond to the RFE and advise them that you are still waiting for the final divorce document. The very worst that could happen is that you would be sent a notice to appear before a judge for a deportation hearing. Go to the hearing and explain the circumstances. The judge will rule that any deportation be put on hold until you have time to complete the divorce decree and submit it to USCIS, who are then required to adjudicate the petition without prejudice. If your evidence is sufficient to prove that you entered the marriage in good faith, then you would receive the 10 year card and the deportation order would be canceled.

It is involved and it is complicated but it is possible. At the very least you can stop worrying that you are going to be deported tomorrow - that definitely won't happen. You are going to be legally present within the US until you are divorced.

One other consideration. While you are not together at the moment your state may have a legal separation requirement. Until you have that you may still be considered together for purposes of USCIS and your ROC may be approved before you are legally separated and/or divorced. Either way, you have time on your side.

Edited June 20, 2011 by Kathryn41

[Nich-Nick 3,354]

Is there anybody here that would just sit tight and wait for that greencard to come in the mail? I would. She married in good faith. Every thing was true when she signed the I-751. Her evidence isn't faked. She is still married. Why stop the ballgame when you're rounding third base in the bottom of the ninth inning with the winning run just because somebody threw mud in you face? Not advising, just sayin'.

[simel1110 4]

Is there anybody here that would just sit tight and wait for that greencard to come in the mail?

Well, I would if I knew it was a temporary break (like less than a few weeks) or that we were going to reconcile. People fight, sometimes people go and stay somewhere to cool off for a few days...But aren't you supposed to inform the USCIS when you move let alone separate? And what happens if you get an interview? I guess you could say the separation occurred after it was filed, which it did, but I think you'd have to do the waiver if it was moving towards divorce, which it seems she is heading.. if you were interviewed. The chance of interview is slim, however.

Reading the post Kathryn I'd think maybe just wait it out and when the divorce decree is in hand if she isn't approved yet then to refile the I751 waiver. The divorce could take months, and could be a huge mess with her ROC if not timed properly. I'd would under no circumstances lie in an interview if she did get one. Or if I got an RFE I surely wouldn't send anything recent, that would be like saying "oh yeah we're still doing all these married couple things together".

Edited June 20, 2011 by simel1110

[rika60607 215]

If she does not follow Kathryn's advice and waits out instead... if her joint I-751 is approved, she will have major problems come naturalization time.

[elikhom 7]

She can update her initially submitted I-751 by phone if needed or by snail mail. No need to submit a new application which will cost time and money.

Here are a few USCIS docs that might relate to your case. One thing though, you do what you need to do in your personal relationship without having to rush to a decision because people here tell you that you need to do something for the USCIS. If you divorce or not it should be completely a personal decision, don't do it because of regulations. You can get approved even if you remain separated (not divorced), all depends on the supporting documents and maybe interview with ot without US citizen.

http://www.rmlegal.com/documents/i-751_Filed_-Prior_Termination_3apr09.pdf

http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/crintwaivr062405.pdf

http://www.uscis.gov/files/pressrelease/CRwaiver041003.pdf

Hope this helps.

[Nich-Nick 3,354]

If she does not follow Kathryn's advice and waits out instead... if her joint I-751 is approved, she will have major problems come naturalization time.

She can't naturalize after 3 years like those who are still married, but what are the major problems naturalizing after 5 or 6 years?

[Kathryn41 3,205]

Yes, there should be no problem with naturalization. If she is divorced she isn't eligible to become a citizen after 3 years through marriage - and if she applies after 5 years as a permanent resident she doesn't have to submit documentation about her marriage since she isn't applying under that option.

[rika60607 215]

Well, the links you provided say that in case of separation I-751 can't be approved until you provide a copy of final divorce decree. If divorce decree is not provided within 87 days of issuance of RFE, the case goes to Immigration judge.

I do not see anything that says that separated spouse can have ROC approved (unless a VAWA case).

If divorce is filed for before I-751 is approved, and USCIS approves joint petition after that... I have seen cases here on VJ where USCIS denied citizenship based on 5 year LPR and threatened revocation of GC. I do not remember if divorce was complete or only filed for at the time of ROC approval in these cases and I do not know the outcome. But people certainly had major problems, and it seems that the problems were caused by technical ineligibility for joint I-751 approval. USCIS approval that was received in error was perceived as fraud committed by the applicant.

She can update her initially submitted I-751 by phone if needed or by snail mail. No need to submit a new application which will cost time and money.

Here are a few USCIS docs that might relate to your case. One thing though, you do what you need to do in your personal relationship without having to rush to a decision because people here tell you that you need to do something for the USCIS. If you divorce or not it should be completely a personal decision, don't do it because of regulations. You can get approved even if you remain separated (not divorced), all depends on the supporting documents and maybe interview with ot without US citizen.

http://www.rmlegal.com/documents/i-751_Filed_-Prior_Termination_3apr09.pdf

http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/crintwaivr062405.pdf

http://www.uscis.gov/files/pressrelease/CRwaiver041003.pdf

Hope this helps.

[deprince 2]

If she is separated and has not filed for divorce and but gets I-751 approved before even she has filed any legal paperwork for separation or divorce... I dont see why she'd have any issues for naturalization. Thats only if I-751 gets approved before taking any legal action for divorce or separation. Its just like saying we are taking a break.

[elikhom 7]

Well, the links you provided say that in case of separation I-751 can't be approved until you provide a copy of final divorce decree. If divorce decree is not provided within 87 days of issuance of RFE, the case goes to Immigration judge.

I do not see anything that says that separated spouse can have ROC approved (unless a VAWA case).

Page 3 third paragraph.

If petitioners are not yet divorced when the RFE response is due, then the case will be evaluated on the strength of the bona fides of the marriage. USCIS will then approve, deny, or interview.

There's an strategic decision to make when separated and having the posibility to file jointly instead of waiver. ie. Filing jointly is better even if you plan to start divorce procedures.

Disclamer: Ask for legal advice.

[rika60607 215]

The problem is that if separation is a reason to not approve a joint petition, then if USCIS learns at a later date (after approval is given) that separation existed, they may choose to see it as if petition should not have been approved to begin with, so GC can be revoked.

Will they learn about separation? May be... some form will require all addresses lived at with dates or something along these lines...

If she is separated and has not filed for divorce and but gets I-751 approved before even she has filed any legal paperwork for separation or divorce... I dont see why she'd have any issues for naturalization. Thats only if I-751 gets approved before taking any legal action for divorce or separation. Its just like saying we are taking a break.

... or send the case to Immigration judge as most every source declares?

Page 3 third paragraph.

If petitioners are not yet divorced when the RFE response is due, then the case will be evaluated on the strength of the bona fides of the marriage. USCIS will then approve, deny, or interview.

There's an strategic decision to make when separated and having the posibility to file jointly instead of waiver. ie. Filing jointly is better even if you plan to start divorce procedures.

Disclamer: Ask for legal advice.