Alex.USA.2017

Getting Divorce while I 751 pending for interview and N-400 Filed,

39 posts in this topic Register to Ask a Question

  • I am married to US citizen from 2014.
  • Filed to remove condition on March 2016.
  • Received REF on March 2017 (Not enough joint financial documents) Responded to REF April 2017. Got I-551 stamp May 2017.
  • Contacted USCIS to follow up and was told the case has been transferred to local office. I guess it means we will be asked for an interview.
  • Filed for N-400 to expedite the interview on August 2017.


 

  • Now, US citizen spouse is asking for divorce!! I am waiting for possible interview letter and any day I might get the interview scheduled. She is pushing me to get mutual divorce since it is faster. otherwise the divorce will take over a year since we must spend 1 year separated before filing.



Now I am stuck with her wanting divorce and I do not know to agree to get mutual divorce or let her file herself and go through this long divorce process.
· If she files for divorce by herself, It will take over a year and half. What will happen to my status with 2 pending immigration cases and pending divorce decree?

· How about I agree to get mutual divorce. Then what should I do with my pending I-751 and N-400? Should I go to interview? Will I get into trouble to get mutual divorce?

Share this post


Link to post
Share on other sites

Posted (edited)

If you're no longer living in a martial union at the same residence as your spouse, you aren't eligible to naturalise under the three year rule, and so your N-400 will ultimately be denied. 

 

With regards to your I-751, you may both be called to an interview or you may not. If your case has been transferred to a field office then it's certainly more likely you're getting an interview, but it's not a certainty. 

 

If you are called to an interview then you could request to change to a waiver filing. 

Edited by Hypnos

Share this post


Link to post
Share on other sites

Posted (edited)

 

Once divorce proceedings have been filed and legally commenced (note, not completed), you (and you alone) have the option of deciding whether to continue as a joint I-751 petition, or to add a divorce waiver to your existing petition and remove her entirely from the process from that point onwards. 

 

Note that if you add a divorce waiver, then your I-751 cannot be approved until the divorce is final, so in in the scenario of her filing for divorce by herself where you mention a possible protracted 18 month timeline, i would suggest keeping your soon to be ex sweet, so that she attends and co-operates with any interview for your existing joint petition. If she does a no-show, you would have no option but to switch to a divorce waiver, or you receive an immediate denial for a no-show.

If your I-751 cannot be approved, then your N-400 cannot be approved, so something for you to think about for how you proceed.

 

If you can get a no-fault divorce (presumably what you mean by mutual) which is a) quicker and b) doesn't have the potential to cause delays or complications to your immigration status, then I feel there is your answer.

 

 

 

 

As you filed your N-400 under the three year rule at the time when you were still 'living in marital union' with your USC spouse who petitioned for your permanent residency, you *may* be ok, as I believe there is case law that has demonstrated that you have to be in that state at the time of filing the N-400, and not at the time of interview or Oath. Then again, I have also read of people denied for having separated/divorced post filing but pre-interview. As a worst case scenario you have to wait and re-file your N-400 five years from your date of permanent residency instead of three.

 

 

 

 

 

If one person has checked out of the marriage, accept it, get it finished legally, and get on with your life.

USCIS really does not care why you are divorced, whether it is for banging the your wife's sister, leaving dirty underwear on the floor, or having a large collection of strange porcelain penises in your kitchen - all they care about is whether you are legally married or divorced, and that it was a bona-fide marriage not entered into for the purposes of circumventing immigration law. 

 

 

 

Edited by mindthegap

Share this post


Link to post
Share on other sites
2 minutes ago, Hypnos said:

If you're no longer living in a martial union at the same residence as your spouse, you aren't eligible to naturalise under the three year rule, and so your N-400 will ultimately be denied. 

 

With regards to your I-751, you may both be called to an interview or you may not. If your case has been transferred to a field office then it's certainly more likely you're getting an interview, but it's not a certainty. 

 

If you are called to an interview then you could request to change to a waiver filing. 

 

Thanks for the response. 

We live in the same house for now. If I get called for an interview and either she does not show up or divorce is not final. then I -751 would be changed from mutual to waiver automatically? I have read that I have to wait till divorce gets final and then I re-file based on wavier.

Share this post


Link to post
Share on other sites

If you went to an I-751 interview without your spouse then your interviewing officer would want to know where they were. At that point you could ask to change to a waiver filing, and wouldn't need to re-file the I-751 over again. 

 

Without a divorce decree USCIS cannot approve a waiver filing, but they could RFE you for it. If you are unable to provide the divorce degree by the prescribed date then your I-751 would be denied. You would then be referred to immigration court. You would explain the circumstances to the immigration judge, who would then likely continue (delay) your case until you had the divorce degree available. At that point the IJ could resurrect your denied I-751 and would likely return it back to USCIS to be re-adjudicated in light of the divorce being final. 

Share this post


Link to post
Share on other sites
10 minutes ago, mindthegap said:

 

Once divorce proceedings have been filed and legally commenced (note, not completed), you (and you alone) have the option of deciding whether to continue as a joint I-751 petition, or to add a divorce waiver to your existing petition and remove her entirely from the process from that point onwards. 

 

Note that if you add a divorce waiver, then your I-751 cannot be approved until the divorce is final, so in in the scenario of her filing for divorce by herself where you mention a possible protracted 18 month timeline, i would suggest keeping your soon to be ex sweet, so that she attends and co-operates with any interview for your existing joint petition. If she does a no-show, you would have no option but to switch to a divorce waiver, or you receive an immediate denial for a no-show.

If your I-751 cannot be approved, then your N-400 cannot be approved, so something for you to think about for how you proceed.

 

If you can get a no-fault divorce (presumably what you mean by mutual) which is a) quicker and b) doesn't have the potential to cause delays or complications to your immigration status, then I feel there is your answer.

 

 

 

 

As you filed your N-400 under the three year rule at the time when you were still 'living in marital union' with your USC spouse who petitioned for your permanent residency, you *may* be ok, as I believe there is case law that has demonstrated that you have to be in that state at the time of filing the N-400, and not at the time of interview or Oath. Then again, I have also read of people denied for having separated/divorced post filing but pre-interview. As a worst case scenario you have to wait and re-file your N-400 five years from your date of permanent residency instead of three.

 

 

 

 

 

If one person has checked out of the marriage, accept it, get it finished legally, and get on with your life.

USCIS really does not care why you are divorced, whether it is for banging the your wife's sister, leaving dirty underwear on the floor, or having a large collection of strange porcelain penises in your kitchen - all they care about is whether you are legally married or divorced, and that it was a bona-fide marriage not entered into for the purposes of circumventing immigration law. 

 

 

 

Thanks for comprehensive answer. I guess my best option is to go through mutual divorce.

 

Note: My wife was introduced to me through a common friend but then during the time we were engaged I saw the real side of her. The same common person told me not to get married to her but I did not listen. What a mistake and what a waste of life.

Share this post


Link to post
Share on other sites
8 minutes ago, Hypnos said:

If you went to an I-751 interview without your spouse then your interviewing officer would want to know where they were. At that point you could ask to change to a waiver filing, and wouldn't need to re-file the I-751 over again. 

 

Without a divorce decree USCIS cannot approve a waiver filing, but they could RFE you for it. If you are unable to provide the divorce degree by the prescribed date then your I-751 would be denied. You would then be referred to immigration court. You would explain the circumstances to the immigration judge, who would then likely continue (delay) your case until you had the divorce degree available. At that point the IJ could resurrect your denied I-751 and would likely return it back to USCIS to be re-adjudicated in light of the divorce being final. 

Well, I think it is better to get divorced as soon as possible. Even if she wants to come to interview she will act up and put me in worse situation than this. She has psychological issues (tried to jump out of car couple of times while on the road, all her family are fighting together in day to day basis, and lots of other things I cannot share). I have been tortured in this relationship God knows......Abused mentally, emotionally, financially,....

 

 

Thanks for the advice.

Share this post


Link to post
Share on other sites

with the divorce the n400 will be denied based on no longer qualifying for the 3 year rule. i751 will either be approved with no interview or at the interview you can switch it to a divorce waver where they will then give you time to get the finalized divorce. it is your interview so if you do not want her there she has no right to attend.

Share this post


Link to post
Share on other sites
1 hour ago, mindthegap said:

As you filed your N-400 under the three year rule at the time when you were still 'living in marital union' with your USC spouse who petitioned for your permanent residency, you *may* be ok, as I believe there is case law that has demonstrated that you have to be in that state at the time of filing the N-400, and not at the time of interview or Oath.

Do you have a source for this? I do not believe it is correct.

Share this post


Link to post
Share on other sites

Posted (edited)

One more thing..... I will get a lawyer for sure but would like to know what you think!

 

Should I get a letter from my wife and her parents regarding the divorce. My wife was married to an immigrant before me and he divorced her after getting his green card (She drove him crazy...). Her mom told me that she wrote a letter to immigration afterwards and created problems for his citizenship process. These people are horrible and I am afraid they will do anything to hurt me although she wants to get divorce herself. Thanks

 

Edited by Alex.USA.2017

Share this post


Link to post
Share on other sites
5 hours ago, Alex.USA.2017 said:

One more thing..... I will get a lawyer for sure but would like to know what you think!

 

Should I get a letter from my wife and her parents regarding the divorce. My wife was married to an immigrant before me and he divorced her after getting his green card (She drove him crazy...). Her mom told me that she wrote a letter to immigration afterwards and created problems for his citizenship process. These people are horrible and I am afraid they will do anything to hurt me although she wants to get divorce herself. Thanks

 

What letter are you thinking of?  Whether you contest or not, you i751 and n400 will likely be denied.

 

Prepare to file i751 yourself.  

Share this post


Link to post
Share on other sites
58 minutes ago, mcdull said:

What letter are you thinking of?  Whether you contest or not, you i751 and n400 will likely be denied.

 

Prepare to file i751 yourself.  

I want to have a written letter that we get this divorce because of her request and ask her parents to sign it too.

 

She does not want to tell her parents that we are getting divorce. She will play a game afterwards that I wanted the divorce. Then her mom will contact USCIS that I got married to her because of green card forgetting the fact that I DID NOT GET IT!! they are very manipulative and always play the victim. They did it to her ex-husband. Looking on the bright side I am happy I am out of this torture. 

Share this post


Link to post
Share on other sites

I'm sorry that you have to go through this situation. You said that she petitioned her previous husband so you are the #2 that she petitions. All I can say is that she better don't try to petition anybody else in a probably long time because that will be under a lot of scrutiny. 

Share this post


Link to post
Share on other sites
1 hour ago, Sunnyland said:

I'm sorry that you have to go through this situation. You said that she petitioned her previous husband so you are the #2 that she petitions. All I can say is that she better don't try to petition anybody else in a probably long time because that will be under a lot of scrutiny. 

Yes she did. She has mental problems. That is why her ex divorced her immediately after getting his green card. I wish I knew that before..... 

Share this post


Link to post
Share on other sites
Back to Top ↑

Didn't find the answer you were looking for? Try asking our VJ Immigration Lawyers.

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!


Register a new account

Sign in

Already have an account? Sign in here.


Sign In Now


Important Disclaimer: Please read carefully the Visajourney.com Terms of Service. If you do not agree to the Terms of Service you should not access or view any page (including this page) on VisaJourney.com. Answers and comments provided on Visajourney.com Forums are general information, and are not intended to substitute for informed professional medical, psychiatric, psychological, tax, legal, investment, accounting, or other professional advice. Visajourney.com does not endorse, and expressly disclaims liability for any product, manufacturer, distributor, service or service provider mentioned or any opinion expressed in answers or comments. VisaJourney.com does not condone immigration fraud in any way, shape or manner. VisaJourney.com recommends that if any member or user knows directly of someone involved in fraudulent or illegal activity, that they report such activity directly to the Department of Homeland Security, Immigration and Customs Enforcement. You can contact ICE via email at Immigration.Reply@dhs.gov or you can telephone ICE at 1-866-347-2423. All reported threads/posts containing reference to immigration fraud or illegal activities will be removed from this board. If you feel that you have found inappropriate content, please let us know by contacting us here with a url link to that content. Thank you.