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kcrs

1yr separation required for divorce..ROC needs to be filed in Nov

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Hi Everyone,

I'm so glad i found this forum. My husband (the conditional green card holder) and I are separating. In my state, there is a mandatory 1 year separation before a final divorce can be granted. That is the problem. I have read about the waivers, but you have to be able to produce the final divorce decree. If we separate now, we will not be able to legally divorce until July 2011. However, we need to file for removal of conditions in November of this year. So, the question is, do we separate and file jointly, wait to separate (thus delaying the inevitable), or have him file with the waiver knowing that the divorce will not be final in time to meet the requirements?

any suggestions?


03/24/08 K1 visa approved, Santo Domingo

06/28/08 Married

07/07/08 AOS mailed to Chicago Lockbox

07/11/08 Recieved NOA1's for I-485, I-765, and I-131

07/26/08 NOA1 for biometric on 08/14/08

08/06/08 Walk in Biometrics completed

08/07/08 Case online and touched

09/04/08 Approval notices for EAD and AP

09/09/08 AP recieved in mail

09/20/08 EAD recieved in mail

01/14/09 Interview notice recieved

02/10/09 Interview APPROVED

02/14/09 Welcome notice received

02/21/09 Green Card Received!!!!!

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If you can pull this off, don't separate.

If your spouse doesn't want to "play along," you have no choice but to file, wait for the RFE, then have your attorney at the court day ask for the deportation proceedings to be put on hold until your divorce if final.

All if this is a huge inconvenience. Therefore, it really would be great if you could avoid this.


There is no room in this country for hyphenated Americanism. When I refer to hyphenated Americans, I do not refer to naturalized Americans. Some of the very best Americans I have ever known were naturalized Americans, Americans born abroad. But a hyphenated American is not an American at all . . . . The one absolutely certain way of bringing this nation to ruin, of preventing all possibility of its continuing to be a nation at all, would be to permit it to become a tangle of squabbling nationalities, an intricate knot of German-Americans, Irish-Americans, English-Americans, French-Americans, Scandinavian-Americans or Italian-Americans, each preserving its separate nationality, each at heart feeling more sympathy with Europeans of that nationality, than with the other citizens of the American Republic . . . . There is no such thing as a hyphenated American who is a good American. The only man who is a good American is the man who is an American and nothing else.

President Teddy Roosevelt on Columbus Day 1915

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If you can pull this off, don't separate.

If your spouse doesn't want to "play along," you have no choice but to file, wait for the RFE, then have your attorney at the court day ask for the deportation proceedings to be put on hold until your divorce if final.

All if this is a huge inconvenience. Therefore, it really would be great if you could avoid this.

thanks, i figured that would be the case. just for point of clarification, I am the one that needs to hold on for his benefit, i'm the USC


03/24/08 K1 visa approved, Santo Domingo

06/28/08 Married

07/07/08 AOS mailed to Chicago Lockbox

07/11/08 Recieved NOA1's for I-485, I-765, and I-131

07/26/08 NOA1 for biometric on 08/14/08

08/06/08 Walk in Biometrics completed

08/07/08 Case online and touched

09/04/08 Approval notices for EAD and AP

09/09/08 AP recieved in mail

09/20/08 EAD recieved in mail

01/14/09 Interview notice recieved

02/10/09 Interview APPROVED

02/14/09 Welcome notice received

02/21/09 Green Card Received!!!!!

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Hi Everyone,

I'm so glad i found this forum. My husband (the conditional green card holder) and I are separating. In my state, there is a mandatory 1 year separation before a final divorce can be granted. That is the problem. I have read about the waivers, but you have to be able to produce the final divorce decree. If we separate now, we will not be able to legally divorce until July 2011. However, we need to file for removal of conditions in November of this year. So, the question is, do we separate and file jointly, wait to separate (thus delaying the inevitable), or have him file with the waiver knowing that the divorce will not be final in time to meet the requirements?

any suggestions?

Your husband is fortunate that he has an understanding wife who actually cares about his status. :blush:

I'm not going to recommend that you "play nice" for the interview just to help him get a 10 year green card. USCIS can deny the ROC if you are legally separated as a mandatory prerequisite to divorce, and require him to self-petition. There is guidance for immigration officers about this in the Adjudicator's Field Manual. If you don't legally separate then you are technically still married for the purpose of removing conditions, but there are bound to be questions at the interview that you might have to be less than totally honest about, and I can't recommend you lie to the immigration officer. Enough said about that - make up your own mind.

He can send the I-751 requesting the divorce waiver without including the divorce decree. When USCIS adjudicates the petition (some months later) they will send an RFE for the divorce decree. If he can't produce it, then USCIS will deny the ROC and begin removal proceedings. At the master hearing he can ask the judge to postpone until the divorce is final. The judge will usually grant this request. Once he has the divorce decree, the ROC can be adjudicated, and the removal proceedings will be stopped.


12/15/2009 - K1 Visa Interview - APPROVED!

12/29/2009 - Married in Oakland, CA!

08/18/2010 - AOS Interview - APPROVED!

05/01/2013 - Removal of Conditions - APPROVED!

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The ROC would be based upon your marriage, which at this point you say is over. I can't imagine why you would put yourself on the hook by doing this. You could (not will, but could) be placed in a situation where you're seen as helping in a fraudulent manner. Either way, best of luck to you.

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