You won't believe what 3 different lawyers Told me today

[ana751 1]

OK Guys,

I just want to SCREAM!!!!!!!!!!!!!!!!!!!!!!

I had posted my situation on a different post but for those who did not read it hear it goes...

Received I751 at VSC 2/25/08.

I am seperated from my wife and moved to MD from NY since feb 2009. I want to notify USCIS of the changes but I just wanted confirmation from an experienced Lawyer. I talked to Three different Lawyers today and two said I will lose my status if I tell USCIS that I have seperated from my spouse. The third lawyer said the only way to get an approval is by geting a final divorce and submit a waiver or stick it out with her and wait. I am so frustrated. I have read about a couple of cases on here that were approved while being seperated and being honest about it. I can't believe that I can't find one damn lawyer that is willing to fight or to confirm that it can be done. The has to be some kind of concrete law that helps peolple who are in a situation like mine. I just don't want to mis represent myself. I feel that the best thing to do is to be honest. My marriege was bonafide but my relaptionship just did not work out. We will be filing for devorce soon. It can take months to get a divorce finalized. I see that this system make it so people feel traped and then forced to lie or pretend that they are in a relationship when they are not. The divorce rate is at a national 52% average for god sakes! I am very upset at these ignorant Lawyers I have been dealing with and I really need to find the statutes that state the facts. I need to know the Law on this matter. I hope some one that went through the same thing reads this and can tell me what I need to do to move forward.

[YuAndDan 153]

You should notify USCIS about this, and have a letter from your spouse that they are still OK with the joint filing.

Filing if the Couple is Separated

More troublesome is if the couple is still married, but separated or otherwise not getting along. With limited exception, as long as the couple is legally married, it is necessary to have a joint petition. Thus, troubled marriages often need either to be reconciled or terminated in order to file the I-751. As explained below, the I-751 can be filed by divorced individuals, and may be approved, as long as there is sufficient evidence that the marriage was genuine when initially entered into. It is more difficult to satisfy the USCIS in such scenarios, however.

Joint-Filing Waived in Limited Cases

There are two situations in which a person who is still legally married can file the I-751 without the spouse. The first is if the person entered into a marriage in good faith, but has been battered or subjected to extreme cruelty by the petitioning spouse. The second is if termination of permanent resident status and removal from the U.S. would result in extreme hardship to the foreign national. Extreme hardship is a high standard and can be based only upon conditions that arose after the conditional residency was acquired.

http://www.murthy.com/news/n_remcon.html

[Ree 9]

I am not a lawyer, but just want to mention that you case sounds similar to mine. Did you file change of address? If you did, you should expect an RFE, because VSC wants to be sure you still live with your spouse at this new address When they see that you are separated, they will most likely call your for an interview. I had my interview 8 months after RFE. But since my divorce was already finalized by the day of the interview, the IO amended my jointly filed petition to divorce waiver and approved it. So, in my opinion, if you are called for an interview, you have good chances to be approved. If your divorce is finalized, your petition will be amended and can be approved. If your divorce not final yet but your spouse is willing to cooperate and appear at the interview with you, you also have chances to be approved.

[ana751 1]

We have not filed for divorce yet. And I have not changed my address with USCIS yet. I have not done so because I have been getting so many mixed advises. From Lawyers, Congreman Reps, Sentor Reps, Family, and freinds. Do you know about any LAW that states that I can notify them about my seperation and not be penalized for it. My spouse is willing to go to the interview with me if they need one. Im so confused and scarred. The last lawyer I talk to today said I need the divorce to be final in order to proceed without being together.

Im very upset that I can't find a Lawyer that can tell me what you just told me. I am very upset.

[ana751 1]

I would be happy if I can change my address, send in letter notifying them of the seperation and upcoming divorce, and get called in for an interview. But every lawyer is telling me It does not work like that.

[Chica Yeyé 41]

That is because it does not work like that. Read what YuandDan posted.

[Minya's wife 24]

This is not difficult, really. You've separated from your wife, and moved to another state,....its been 3 months....the ethical, moral and USCIS approved thing to do is to file for divorce, wait for it to be finalized and then file to remove conditions. USCIS expressly allows for this, you will not be judged more harshly because you divorced....you have to prove that you entered the marriage in good faith, and it was a real marriage until the point of divorce. If you have a petition now pending, you should withdraw it.....you basically filed the I-751 signaling to USCIS you're still in a valid marriage, and moved to another state in the same month, there is no valid basis for your I-751. You left the marriage....you now need to file as divorced, but must obtain a final divorce first.

[rebeccajo 14]

I have a feeling these lawyers may have been advising you in this manner because it's been so long since you filed and your case approval is likely imminent.

They are probably also operating under the assumption that your marriage was not 'under water' at the time you filed.

I have no idea if their advice is legally sound or not. If the color of the marriage changes during processing, is the alien frauding the system by allowing the case to move forward as it was originally presented?

That's a question for qualified counsel. I hope you spoke to one. Not just any old lawyer - but an expert in family immigration.

[Bahamas124 0]

Sit Back and Relax,do nothing let them make the next move.Be ready to respond if you get an RFE other than that do nothing to jeopardize your chances.I am speaking from experience some others here while trying to do what they think may be the right thing to do. I tell you to just wait been there done that, was in this same situation approval done.

[venusfire503 54]

This is not difficult, really. You've separated from your wife, and moved to another state,....its been 3 months....the ethical, moral and USCIS approved thing to do is to file for divorce, wait for it to be finalized and then file to remove conditions. USCIS expressly allows for this, you will not be judged more harshly because you divorced....you have to prove that you entered the marriage in good faith, and it was a real marriage until the point of divorce. If you have a petition now pending, you should withdraw it.....you basically filed the I-751 signaling to USCIS you're still in a valid marriage, and moved to another state in the same month, there is no valid basis for your I-751. You left the marriage....you now need to file as divorced, but must obtain a final divorce first.

It looks to me like he filed a YEAR before he moved out (unless it was a typo). In many cases, he would've had the card already. I'm not so sure I'd want to start over, especially after waiting for almost 15 months.... Plus, he's getting all kinds of conflicting advice. It sounds to me like he's just trying to find out the truth.

venusfire

[ana751 1]

Thank You VenusFire503. I see that you understand my situation. I am just trying to find out what I should do without jeoperdizing my residency. Minya's Wife, I applied Feb. of 2008 and we did not seperate untill Feb. 2009. I will file for divorce but as most of you already know I need a final divorce decree in order to withdraw my Joint I751 to submit a new I751 with a waiver. That can take months to get the divorce finalized. So as you can see that path is not so easy especially when I have been waiting for 15 months.

Bahamas124, My thoughts are to wait for the RFE before I make a move. Yesterday I contacted the congressmans office and begged them to try and get a faxed copy of the RFE. Because USCIS said they have mailed it out to me already but I have been waiting 4 weeks to receive it and still nothing. I don't want to get denied because I did not respond, so thats why I am contacting the senetors/ and congressman's office to see if they can get a faxed copy of the RFE.

This situation is delicate and I have to be smart about my moves. Thats why I am trying to find out the facts and the LAW. Im getting so much mixed advise that its making my head spin. Yesterday I forwarded positive outcomes from fellow VJRS (that were in a similar situation and were approved) to those Lawyers I talked to so I can challenge them on the legal advise they gave me. Im waiting to hear what they have to say...

[Bobby+Umit 161]

USCIS would know your separated from your wife, since you moved, and required by law to notify them via the AR-11. You updated your change of address, correct?

I would not recommend to "sit back and relax", you seemed to have set yourself up to a lot of explaining to do for the interview if you do.

As Yu and Dan pointed out, you have a few options.

1. Get divorced, withdraw paperwork, put in new paperwork (waiver for joint filing) for yourself. You would have to prove a good faith marriage.

2. Stay separated, notify USCIS prior to the interview, and apply for a waiver for joint filing, using the original paperwork. You would have to prove a good faith marriage.

(you could also use option 3. The termination of your status and removal would result in extreme hardship.)

With any of these choices, even if you remained married, you still run the risk of not getting approved.

Here is a good write up that talks about this: SRW Blog 751

I don't agree with this:

I see that this system make it so people feel traped and then forced to lie or pretend that they are in a relationship when they are not.

The system does not force you to remain married or to fake a relationship. You have the option to divorce and attempt to remove conditions yourself if you can.

To try to stay in a bad relationship, or fake it, can be construed as fraud, if alll you want is the GC.

Edited May 6, 2009 by Bobby_Umit

[ana751 1]

What I am saying is that they should have a LAW that can be used by couples who are seperated and not yet divorced. Immigration has no grey area. Its only one or the other (married or divorced). It takes months to get a divorce. I can be denied waiting on the final divorce. And There is NO LAW that protects people in the mean time. Thats all Im saying. I need facts, statutes, and or straight up LAW. Immigration clearly states what to do if filing I751 while married. It also clearly states what to do if you filing I751 and divorced. But they are not clear on being seperated while jointly filed I751 petition is still pending. In my case I have not been waiting three months and then seperated. I have been waiting 15 months!!!!!!!!

Bobby Umit, Please find me something concrete on how to handle my situation. That would be really greatful.

[Bobby+Umit 161]

What I am saying is that they should have a LAW that can be used by couples who are seperated and not yet divorced. Immigration has no grey area. Its only one or the other (married or divorced). It takes months to get a divorce. I can be denied waiting on the final divorce. And There is NO LAW that protects people in the mean time. Thats all Im saying. I need facts, statutes, and or straight up LAW. Immigration clearly states what to do if filing I751 while married. It also clearly states what to do if you filing I751 and divorced. But they are not clear on being seperated while jointly filed I751 petition is still pending. In my case I have not been waiting three months and then seperated. I have been waiting 15 months!!!!!!!!

Bobby Umit, Please find me something concrete on how to handle my situation. That would be really greatful.

I made a mistake when I was typing on number two - You can't apply for a waiver for joint filing if your just separated - (But you can go to the interview together, even if seperated, but not divorced as I will outline below)

From the Lawyer site link I provided:

CIS has provided guidance on what to do if a couple jointly files I-751 paperwork, but later separates or divorces before the jointly filed I-751 is adjudicated. If the couple separates, CIS should be notified so that the issue may be addressed at an interview at the local CIS office. If the couple divorces, new I-751 paperwork should be filed as a self-petition with a waiver request. In most cases, the waiver request may be based on showing that the marriage was entered into in good faith.

Perhaps the worst thing to do in this situation is nothing. If a jointly filed I-751 is approved after a couple separates or divorces, that approval may not be seen as valid and the individual may run into serious problems if s/he attempts to naturalize.

So if you inform CIS that you are seperated, prior to the interview, they will probably tell you to either wait for the divorce to be final (and get a continuance on the interview and subsuquent waiver application due to the divorce) or both of you go to the interview, even though seperated, and show your marriage was entered in good faith,

But in most cases, USCIS wants that divorce before allowing you to use a waiver to file by yourself;

What if I Am in Divorce Proceedings, But Am Not Yet Divorced?

If you and your spouse are unable to apply to remove the conditions on your residence because of divorce or annulment proceedings, you may not apply for a waiver of the requirement to file a joint petition, based on the “good faith” exception. You may not file for the waiver until after your marriage has been terminated.

Please see Immigration Policy and Procedural Memoranda, memo dated April 10, 2003 for more specific information.

Source: USCIS "How Do I Remove The Conditions On Permanent Residence Based On Marriage?"

Now, if you read the memo stated above (which i will link below), it gives you a chance to apply if your initial application is denied, but you need more time to divorce:

If an alien’s conditional resident status is terminated because he or she could not timely file a Form I-751, and he or she is placed in removal proceedings, then he or she may request a continuance from the immigration judge to allow for the finalization of the divorce or annulment proceedings.

This means, if you are seperated, and awaiting divorce, and your I-751 is denied, you can ask the IJ to let you stay so you can attempt to file again after you divorce, without having to leave the US.

Source: USCIS Memo "Filing a Waiver of the Joint Filing Requirement Prior to Final Termination of the Marriage"

So this gives you some protection of being sent home, if you can't get the divorce in time and shows there are regulations to protect everyone, regardless of where you are in the marriage.

Now - the only thing you will have to do, in any case, is to prove that the marriage was entered in good faith and not for immigration purposes.

Edited May 6, 2009 by Bobby_Umit

[Bobby+Umit 161]

One more thing on filing seperated, but jointly:

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.

Source: nscflash19-2005.pdf