Hey everybody,

I have a serious issue going on at the moment. My wife and I have been married a little over 2 years, and my conditional green card will expire March 17th. In the last year we've been having serious issues in the marriage and at this point it just doesn't seem to be working. We've tried counseling in the past, which worked for a while, but other issues kept piling up.

I was under the impression that the I-751 waiver could be filed in situations like this with proof that the divorce has been filed, but hasn't been finalized yet, and that when the divorce would be final, you'd have to file the whole thing again. This was to let immigration know that you are trying to comply with immigration law, but to notify them of the situation. I'm pretty sure I heard this from the person I got my lawyer through. I talked to that lawyer yesterday, and he denied every saying that. What's worse is that he said you can't get an extension at all. That INS simply doesn't care in this case. He said the only choice I had was to try to keep the ball rolling with my wife and file it that way, and then get a divorce after I receive my unconditional green card. He said under no circumstance can you file the waiver, unless the divorce is final. Which would put me far over my expiration date. Making me illegal and not able to work anymore. In other words, I would be out of status and have to leave my life here in the States. Does anyone have experience with this, or does anyone know more? Is that really the only way?

Many people will argue to just tell my wife that I want to try again and hold on for another 9 months or so, when I would get the final green card. This is a huge dilemma for me. At the one hand I really want to stay here, I have a good job here and have built up a life. If I would look solely at myself I could be selfish and keep her in the dark about this. (I haven't told her I wanted to get a divorce yet, that was supposed to happen tonight). Then I could divorce her after the green card comes. But I'm at a point where I don't want to live lies anymore. I don't want to lie and go behind her back. Out of respect to her. I'd have to live with that the coming months, and after that. We have our problems and things are not working, but it's not like she's pure evil and I hate her. (That would've made it much more simple). So I can embrace truth and tell her the whole story and ask her if she would stay with me until the green card, and risk the fact that she'll just say no, knowing that it will force me to leave everything here and leave the country. Or I can pretend like it didn't happen for the next 9 months or so, and then leave her. All the while risking the fact that she'll find out during that time, if not when I would leave.

Anyway, I hope I can get some input from people here.

Thanks.

I would agree with your lawyer in that you need to be divorced to file individually.

From other posts, there have been many, what usually happens is that you file and get the Interview postponed until the divorce is finalised.

You can see others personal experiances by doing a search, a long shot for them to see your post and comment.

Hmm. What interview? There may not be one! Now to address the OP's question, if one looks at the regulations one will see that in order to self-petition (commonly referred to at this stage of the process as filing a waiver I-751) one has to demonstrate one or more of the various grounds for USCIS to waive the "joint filing requirement". One of those grounds is "bona fide marriage that terminated in either annulment of divorce". Naturally, absent a divorce decree an alien cannot meet the standard required to warrant USCIS waiving the joint filing requirement. The mere initiation of a divorce action does not suffice, since the marriage is not yet legally terminated. This is why NSC issued a series of memoranda in 2005 to clarify proper protocol for divorcing aliens that hold conditional green cards.

In cases where the alien is approaching the deadline to remove conditions from his/her residency, and a divorce is looming on the horizon, the alien has one of two options. If the USC spouse is still willing, the couple can jointly file the I-751, with the understanding that if subsequent to that joint filing the marriage terminates in divorce or annulment and a decree is available, the joint petition be withdrawn and replaced with a self-petition, filed by the alien, along with a copy of the divorce decree.

Of course, divorce is sometimes acrimonious, and there may be cases where the USC party is not inclined to agree to jointly file the I-751 with the alien. In such an event, the alien has little other recourse but to attempt to negotiate a settlement and finalise the divorce process swiftly so that he or she can submit the self-petition with evidence that the marriage is now legally terminated. Should the expiry date of the conditional green card arrive and the alien is still not yet divorced, then he or she faces issues related to being out of status, without employment authorisation and subject to removal.

Acceptance of an untimely (late) petition to remove conditions is discretionary, but often if the alien can explain a delay was beyond his or her control, it may be permitted.

I have two more concerns.

1) Except for the I-864 itself and other sites that repeat the same rules, I really can't find any credible info on what and when they would come after the sponsor, and most importantly; what they can't come after the sponsor for. I've said that it only goes for means tested benefits, and that's it. In the very unlikely situation that I use a lot of them, and can't pay them back, they can go to her. But anything other than that they don't really care about. Is there any place online where I can find some info that could ease her mind? Any info on how much this thing really gets enforced in reality (I've heard it pretty much never comes to it)

2) After the filing the I-751, there are 2 possible scenario's when it would turn out for either of us that it just really doesn't work and file for divorce. Either the divorce isn't final until my AOS is approved and I have the green card, or it's final before my card is in. If I receive the green card before a divorce is final, would I be good? In the other case, do I then need to file the I-751 again with a waiver? I know I get the 1 year extension after filing a I-751, but that would probably only go so far. Can she withdraw the I-751 or I-864 contract in the time the I-751 is getting processed? If yes, what would that mean for me?

This marriage is definitely bona-fide and I've build up a life here. A good job and friends. I really want to give up a whole life again, like I did when I moved to the US. In no way do I want to jeopardize my wife, but I'm trying to look out for myself here. Very stressful.

Any input would be very much appreciated!
Thanks.

Thanks.

I have not heard of those self petitiioning not being called for interview, I may just not have been paying attention

The obligation of the I-864 can not be avoided by Divorce, there are 5 reasons it can be terminatd, the obligations etc are set out quite clearly on the form itself.

It seems rare for the Affadavit to be enforced.

She can ffectively withdraw her input to a jointly filed application, can not do obviously if you self petition.

Here's a fresh one for you from today: http://www.visajourney.com/forums/index.php?showtopic=54656

I have a similar situation, but my husband and I are already living in seperate states. We have been seperated for almost 3 years now and will eventually get around to filing for divorce. We were married in good faith and I maintain a residence in my home state with him (I've only been in here for under a year and again, haven't gotten around to changing my address), so when we filed out I751, we did so together. We've been waiting since October (biometrics appt) and haven't heard anything. Now I'm starting to wonder..... Even though we are still legal, can they deny our petition?

Can they deny the petition even though you are "Still legal" meaning still legally married? Even parties that are separated can jointly file to remove conditions although it is never advisable to feign that you are cohabiting, as that only casts doubt on the evidence presented. But to answer your question, the regulations only stipulate that a petition jointly filed cannot be adjudicated if the marriage through which the alien was conferred permanent residency ends in annulment or divorce prior to approval.

Thanks, I am asumming there have been others as well.

Not paying attention!