I-751 sent and divorcing

[miag8 0]

Hello everybody!

A friend of mine asked me to get information on her case, so I thought I would ask here.

My friend has been married to a USC for almost 3 years and she sent her I-751 form on January 08. Things are not great with her husband and she wants to divorce but she's worried that the petition for divorce will compromise her AOS.

The USCIS is currently processing the I-751 for March 07. If my friend divorces now, what will happen to the I-751 she already sent?

I hope you can help her, she's very stressed out about it. Thank you all.

[English Muffin 59]

Hello everybody!

A friend of mine asked me to get information on her case, so I thought I would ask here.

My friend has been married to a USC for almost 3 years and she sent her I-751 form on January 08. Things are not great with her husband and she wants to divorce but she's worried that the petition for divorce will compromise her AOS.

The USCIS is currently processing the I-751 for March 07. If my friend divorces now, what will happen to the I-751 she already sent?

I hope you can help her, she's very stressed out about it. Thank you all.

I'm afraid I don't know the answer but you will probably get more replies if you post this in the 'Removing Conditions' forum.

Gillian

[motu 5]

Most I751 are approved without an interview. So chances of not needing an interview are high. But if there is an interview, she may have to go alone (if the husband doesn't go with her) and prove that the marriage was genuine. Some people wait for the divorce to be final and then go for Removal of conditions on their own. Good Luck

[Rob & Jin 0]

for removal of conditions it doesn't matter if you are still married or not.

[Cassie 8]

moving to appropriate forum

[Kathryn41 3,205]

Actually, it does matter if you are still married or not. The conditions based on the marriage is the 'requirement for proof that the marriage is valid". The I-751 is a "Joint" application that is signed by both the US spouse and the non-US spouse. The evidence provided shows that the couple have co-mingled their financial assets and personal lives. If an individual is divorced they need to submit the petition independently, checking off the "request for waiver from joint filing condition" section of the form. If the form has already been submitted and the individual divorces before it is adjudicated, he/she needs to withdraw the joint application and resubmit their independent application requesting the waiver. The proof of valid marriage evidence remains the same. If someone is separated, they can't file until the divorce is completed.

If the application is a joint application and an interview is required, both individuals must attend. One going on their own doesn't work, unless the individual has filed independently and requested the waiver.

Good luck to your friend.

[miag8 0]

Thank you all for the help. I will tell my friend she will probably need to do another I-751 seperately this time after she's divorced.

[diadromous mermaid 36]

I'll add that if the USCIS approves a joint petition after the couple has already deivorced, that approval can be and most likely would be revoked.

[mawilson 2,133]

I'll add that if the USCIS approves a joint petition after the couple has already deivorced, that approval can be and most likely would be revoked.

Really? Why would it be revoked if the petitioner never interacts with the USCIS ever again?

[motu 5]

I'll add that if the USCIS approves a joint petition after the couple has already deivorced, that approval can be and most likely would be revoked.

I agree with mawilson. I would think that USCIS wouldn't consider this at all - this would be no harm no foul type of deal. Since one could file today and get divorced prior to the approval. Why would one be forced to file again after divorce - since the evidence of having a genuine marriage at the time of filing would not change in this situation? Has anybody have this happen to them?

[diadromous mermaid 36]

I'll add that if the USCIS approves a joint petition after the couple has already deivorced, that approval can be and most likely would be revoked.

I agree with mawilson. I would think that USCIS wouldn't consider this at all - this would be no harm no foul type of deal. Since one could file today and get divorced prior to the approval. Why would one be forced to file again after divorce - since the evidence of having a genuine marriage at the time of filing would not change in this situation? Has anybody have this happen to them?

Read this in the AILA bulletin

ADDENDUM VIII

I-751 Petitions for CRs in divorce proceedings

Current practice at the USCIS Service Centers dictates that a conditional permanent resident who divorces during the pendency of the I-751 petition may withdraw the original I-751 petition and file a new I-751 petition with a waiver of the joint filing requirement.34 This approach, however, often leaves the conditional permanent resident with a gap in resident status and employment authorization. It also initiates the accrual of unlawful presence for an individual who has attempted to comply with the law.

Prior to issuance of the 2003 Yates memo, many USCIS Field Offices permitted conditional permanent residents to present a new I-751 petition with a waiver of the joint filing requirement at the time of the I-751 interview. The current trend is for examiners to deny I-751 petitions that present this issue. This leads to a waste of resources, i.e. issuance of an NTA where the conditional permanent resident is placed in removal proceedings, at which time he or she may submit in immigration court a new I-751 petition with a waiver of the joint filing requirement. Furthermore, once the new I-751 petition and waiver of joint filing requirement is filed with the immigration court, ICE often moves to terminate proceedings and the I-751 petition is returned to, and ultimately adjudicated, by USCIS.

AILA requests that USCIS consider an administrative remedy which would protect the status of the conditional permanent resident until the I-751 petition is adjudicated. AILA recommends that USCIS permit an individual whose divorce is finalized during the pendency of the I-751 petition to file a new or amended I-751 petition with the appropriate Service Center, without having to withdraw the original petition. AILA also recommends that USCIS allow such individuals to present a new or amended I-751 petition at interview at USCIS Field Offices. Each of these approaches permits the conditional permanent resident to maintain his or her permanent resident status and employment authorization and prevents the accrual of unlawful presence until their waiver application is administratively adjudicated. Such a remedy not only protects a conditional permanent resident but also conserves government resources.

Accordingly, AILA respectfully requests that USCIS consider these points and issue updated guidance on the matter.

_____________________________________________________

34 See generally INA § 216 and the memorandum Filing a Waiver of the Joint Filing Requirement Prior to Final Termination of the Marriage, William R. Yates, Acting Associate Director, Operations, BCIS, HQADN 70/23.12 (Apr. 10, 2003). A conditional permanent resident who has commenced divorce proceedings cannot file individually to remove the conditions on residence by filing a waiver of the joint petitioning requirement. Rather, such an individual must file jointly with the U.S. citizen spouse or wait until the divorce is final. Since conditional permanent residents have a 90 day window in which to file to remove the conditions on residence, this presents an untenable situation as the divorce is often finalized during the pendency of the I-751 petition

[russian_armenian 4]

It would be revoked at time of N-400. They do ask for divorce papers even if you file N-400 at 5 years time. Even if somebody got 10yGC (but divorce is 1 day earlier)-better to submit new I-751 with waiver.

I'll add that if the USCIS approves a joint petition after the couple has already deivorced, that approval can be and most likely would be revoked.

Really? Why would it be revoked if the petitioner never interacts with the USCIS ever again?

[*JG* 2]

I agree. If they don't ask for an interview, I don't see anything wrong with the no harm, no foul thing. If he was willing to file as married, cause they were married at the time, it's not an issue. If they were to call for an interview, that's a problem to deal with later.

Even if you divorce, it may take the entire processing time to go through anyhow.

[diadromous mermaid 36]

Well, following the prescribed protocol is recommended. Of course, if one is a gambling man/woman, he or she can choose to deviate, at his or her own risk.

U.S. Department of Homeland Security

P.O. Box 82521

Lincoln, NE 68501-2521

December 27, 2004

NSC Flash #6-2005

The Effect of Separation/Divorce on Pending I-751 Petitions to Remove the Conditions on Residence The effect of separation and/or divorce on the filing and adjudication of I-751 petitions is described below according to the various scenarios that exist.

· 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

o separate before a decision is made on the I-751, the beneficiary should notify the NSC that s/he is currently separated by sending a letter to PO Box 82521, Lincoln, NE 68501-2521. The case will then be relocated to the local district office for an interview.

o get divorced while the petition is pending, the beneficiary should file a new I-751 petition with fee (only s/he needs to sign), marking "d" in Part 2. The beneficiary should also request that the Service withdraw the first petition.

· If the petitioner and beneficiary are separated at the time the I-751 should be filed, the beneficiary should file the I-751 and mark “d” in Part 2. The NSC will relocate the case to the local office for an interview.

o If the petitioner and beneficiary are separated at the time the I-751 should be filed and the beneficiary files an I-751 as instructed above but the divorce becomes final while the I-751 is still pending, the beneficiary should file a new I-751 petition with fee (only s/he needs to sign), marking "d" in Part 2. The beneficiary should also request that the Service withdraw the first petition.

Petitioner and beneficiaries are reminded that required supporting documentation must accompany any petition.

http://www.avlawoffice.com/CIS_Memo_Dated_Dec_27_2004.html

[mawilson 2,133]

It would be revoked at time of N-400. They do ask for divorce papers even if you file N-400 at 5 years time. Even if somebody got 10yGC (but divorce is 1 day earlier)-better to submit new I-751 with waiver.

Only if you choose to file the N-400.

Edited to say: Mermaid - thanks for the info!

Edited April 27, 2008 by mawilson