divorce before 2 years is up

[cherylc522 0]

what is the process for divorce before your 2 years is up and what happens to your permanent residence then? do you have to file something else or how do you go about that?

[Udella&Wiz 325]

I'd head over to Removal of Conditions forum...but there is a waiver that can be filed, although I am not sure of the conditions required for it. The marriage must have been entered into in good faith I believe and proof is required of that.

[Sprailenes 47]

Aww Cheryl... I remember you posting soon after you arrived and having some issues.

I Pm'd you btw.

[warlord 72]

Yes it's based on the conditions. They can grant permenant residency if the marriage was proven to be entered in good faith and usually granted if the spouse was abusive and such I know. If the marriage just fell apart, but was entered in good faith. The issue is that you need the spouse to jointly file the Removal of Conditions. So if they do not agree then that's where problems will occur and will have to fill out another form or waiver.

Make sure you do not get your divorce finalized before the 10 year Green Card is issued as this will terminate the conditional residency of the conditional green card in which then you would need a immigration lawyer to try and get a waiver for that as well...

So just depends on your relationship and how close you are to removing conditions...

Yes it's based on the conditions. They can grant permenant residency if the marriage was proven to be entered in good faith and usually granted if the spouse was abusive and such I know. If the marriage just fell apart, but was entered in good faith. The issue is that you need the spouse to jointly file the Removal of Conditions. So if they do not agree then that's where problems will occur and will have to fill out another form or waiver.

Make sure you do not get your divorce finalized before the 10 year Green Card is issued as this will terminate the conditional residency of the conditional green card in which then you would need a immigration lawyer to try and get a waiver for that as well...

So just depends on your relationship and how close you are to removing conditions...

[warlord 72]

Why the hell did the post thing re-post twice? Wierdy...

[cherylc522 0]

So if I'm understanding right, we have to stay married for the full 2 years? do we do a separation or how does that work? so basically I cannot divorce him if i want to stay here, I need to somehow work it out where we stay married but separate until the 2 years is up?

[Kathryn41 3,205]

Hi Cheryl,

No, you can get divorced. Some marriages just don't work out even though both parties started out with the best of intentions of making it work. You need to file to remove the conditions on your 2 year green card within the 90 day period prior to the expiry date of that green card. It is supposed to be a joint application wherein you prove the validity of the marriage by showing how you have merged together your financial, personal and social lives. If, however, the marriage just hasn't worked out, and you are divorced, then you can file before that 90 day window requesting a 'waiver' of the joint filing condition. You still have to submit the evidence that shows your marriage was in good faith, and then include the divorce document showing that the marriage is dissolved. There is a section on the form that you check off to request the 'waiver'.

In some cases, that 90 day window opens up before the divorce is finalized and that can be problematic. USCIS has recognized that to some degree and you can apply with the divorce incomplete but you will need to submit the divorce document as soon as you can.

There is more information in the Removal of Conditions forum. You may wish to post your question there, as well as read over the guides at the top.

I'm sorry you are having problems with the marriage. It is always sad when what was supposed to be a happy dream comes to an end and is no longer happy.

[cherylc522 0]

Thank you kathryn, that was really helpful and i will check the other forum, I was just afraid that if we divorced that i would have to go back, I don't want to do that since I have already established my life here and there is not anything for me to go back for. Is there anything that would cause my waiver to be denied do you think? when i file to remove conditions do you know if i still have to do it joint with him?

[Kathryn41 3,205]

Thank you kathryn, that was really helpful and i will check the other forum, I was just afraid that if we divorced that i would have to go back, I don't want to do that since I have already established my life here and there is not anything for me to go back for. Is there anything that would cause my waiver to be denied do you think? when i file to remove conditions do you know if i still have to do it joint with him?

If the two of you are still together, you can file jointly and if you are still together by the time of the approval, then you would have no problems. If you do separate/divorce before there is a decision and you have filed jointly, then you would need to prepare a new I-751 requesting the waiver due to divorce and send in that one requesting that it replace the I-751 you filed jointly.

You can file with the waiver as long as you are divorced or in the process of getting a divorce. If the divorce is finalized before you file, then you would include the divorce decree with the application. If the divorce isn't finalized, you will get an RFE for it and hopefully, the divorce will be finalized by then so you can include it. If you are not able to provide the divorce decree, they could deny the application, however you would then have the opportunity to appeal the decision and make your case in front of an immigration judge. You would then present the evidence that your divorce is in progress and only the timing requirements of the divorce prevented you from providing the final document with the I-751, and request a 'stay on the final decision' until the time your divorce is finalized and you can provide the document. From what I have heard this is usually granted.

I-751s can be denied if they lack evidence to show that the marriage was entered into honestly and not for immigration purposes. Whether you file jointly or file with the waiver you need to provide the necessary documents that show that the marriage was entered into by both parties in good faith and it was a real marriage. If the marriage has broken down, then with the waiver you would provide evidence that it is no longer a valid marriage even though it started out that way.

Collect the evidence you need now from the early years of the marriage to show how you have joined together your personal, financial and social lives. If you do divorce the above are the options available. Depending on the timing, it may work out easily or it may be more cumbersome, but it should work out that you will be able to stay in the US. Good luck.

Edited May 16, 2010 by Kathryn41

[Krikit 1,163]

Thread hijack removed.

Cheryl, I am sorry you are having to go through this. I am moving your thread to the Effects of Major Changes on Immigration Benefits forum as you will find a lot of helpful information there.

[justashooter 430]

If you do separate/divorce before there is a decision and you have filed jointly, then you would need to prepare a new I-751 requesting the waiver due to divorce and send in that one requesting that it replace the I-751 you filed jointly.

flash memo 19-2006 indicates that if an immigrant seperates after filing joint I-751 that they should notify nebraska service center of the seperation, and that nebraska service center will convert the existing joint application into a seperated application. a new filing is not required. the immigrant will then be asked to provide a final divorce decree, and be ajudicated by interview. of course, AR-11 change of residence should also be filed.

[Kathryn41 3,205]

Thanks for the correction, Justashooter

[justashooter 430]

sorry, that was 19-2005:

from this page:

http://www.aa-law.com/index.php?option=com_content&task=view&id=431&Itemid=397

this link:

http://www.aa-law.com/images/stories/i-751-condition-nscflash19-2005.pdf

Revised Revision to NSC Flash #6-2005

Please note that additional clarification has been provided in regard to NSC News

Flash #18 dated March 30, 2005 that amended News Flash #6 dated December

27th, 2004.

The Effect of Separation/Divorce on Pending I-751 Petitions to Remove the

Conditions on Residence

• If the petitioner and beneficiary are divorced at the time the I-751 should be filed,

the beneficiary should file the I-751 (only s/he needs to sign) and mark "d" in Part

2.

• If the petitioner and beneficiary filed an I-751 petition jointly but:

a)separate before a decision is made on the I-751, the beneficiary should notify

the NSC that he/she is currently separated by mailing the explanation to the NSC

at PO Box 82521, Lincoln NE 68501-2521.

b)get divorced while the I-751 petition is pending, the beneficiary should notify

the NSC that he/she is divorced, and submit a copy of the divorce decree to the

NSC at PO Box 82521, Lincoln NE 68501-2521.

• If the petitioner and beneficiary are separated or have initiated divorce

proceedings at the time the I-751 is due to be filed, the petitioner and beneficiary

may still file a joint petition if the petitioner is willing to sign the petition. If the

petitioner is not willing to sign a joint petition, the beneficiary is not eligible to file

a petition requesting a waiver of the joint filing requirement due to divorce until

the divorce is final UNLESS abuse is the basis for such a filing. The alien’s

status may be terminated because s/he has been unable to file a timely I-751

and s/he may be placed in removal proceedings.