I-130 Visa and Divorce

[inloveVEN 46]

My husband and I married in February of 2008. We have a child together that was born prior to the date of marriage and were together since 2003. We did a I-130 Immigrant Petition for Relative and a I-485 Application to Adjust to Permanent Resident Status. My application for permanent residence was approviced on January 16, 2009. My husband wants a divorce (he is the US citizen).

I remember our attorney said there would be a review of our case 2 years after approval (01/16/11). After that date are we able to file for divorce. I would like to apply for citizenship at 3 years but I am wondering if a divorce would affect that.

Hoping someone can help with some advice.

Thanks in advance

Hi AngelaF,

you only qualify for a citizenship based on marriage if you are still married with the same person that originated your GC, and, after 3 years of having your GC., and having continuous residence.

USCis

so your application will be denied. and if you are separated instead divorced, will be a hard challenge to prove that you are still married living in different address than your spouse.

the only path that you can use is "Continuous Residence and Physical Presence Requirements for Naturalization" and you will need 5 years for that. but also in this case you have to prove that your marriage was based on good faith and it will be only possible showing strong and real evidences otherwise your application has a lot of probabilities to be denied.

but answering your specific question, you cannot apply for your citizenship if you file the divorce

Edited July 19, 2010 by inloveVEN

[Lisa and Ian 7]

Well, item 7.11 here says you can remove conditions after a divorce: http://www.visajourn...tions.html#7.11, but recommends an immigration attorney.

Also, read "Who May File" and "When Should I File" here: http://www.uscis.gov.../i-751instr.pdf. If you get divorced, then you can file to have conditions removed immediately, according to the documentation.

Save documents to prove you intermingled accounts, rental agreements, etc. There may be other proof required to show you entered the marriage in good faith.

I recommend researching VJ for similar situations. You may find people who've made it through this process who have recommendations.

Good luck!

Edited July 19, 2010 by Lisa and Ian

[ValerieA 350]

OP, I went into the ROC forum to find proof that there are approvals for this, since some seem reluctant to believe it. Here is the link to a thread where the divorced LPR successfully removed conditions in June:

http://www.visajourney.com/forums/topic/262003-divorce-waiver-approved/

There is also a list of the proof provided, and they were approved without an interview. Please refer to that forum, and check out all the stories from the people there. This is only one example.

[Mr. K 8]

Just curious, since this probably can be achieved, what's the purpose of the 2-year "requirement" in the first place?

Edited July 19, 2010 by Mr. K

[inloveVEN 46]

Just curious, since this probably can be achieved, what's the purpose of the 2-year "requirement" in the first place?

Hi

they give you a Conditional residency if by the time of your approval you dont have 2 years married, so this 2yrs conditional GC, is only a way to tell you, that"we are not sure about if your marriage is in good faith so come again in 2 years to see if you are still married".

if your marriage is older than 2 year commonly they will issue you a permanent residency status

Edited July 19, 2010 by inloveVEN

[Mr. K 8]

Hi

they give you a Conditional residency if by the time of your approval you dont have 2 years married, so this 2yrs conditional GC, is only a way to tell you, that"we are not sure about if your marriage is in good faith so come again in 2 years to see if you are still married".

if your marriage is older than 2 year commonly they will issue you a permanent residency status

inloveVEN,

Thanks for the reply. But it seems (according to this discussion and others) that even if the marriage lasts less than two years, the green card will still be issued as long as a waiver is filed (with other evidence). So, if things are done this way, I would think the two-year "requirement" is more of a recommendation.

Edited July 19, 2010 by Mr. K

[rika60607 215]

As of now, you are conditional permanent resident.

Considering that your relationship lasted years and was genuine, you should not have any trouble removing conditions if you chose to divorce. Read I751 instructions for examples of paperwork that USCIS wants to see as proofs of relationship.

If you choose to divorce, you need to move on it quickly, because your divorce decree will be needed for I-751 waiver filing, in addition to all the other papers that you would submit if you filed to remove conditions as married.

Divorce will affect your citizenship application in that you will have to wait additional 2 years after becoming LPR (5 years total). Regardless of what your lawyer says, it is not safe to initiate divorce while your I751 petition is in processing. If you do, USCIS may require you to withdraw initial joint petition and replace it with waiver petition. Or worse, you will get approved, but divorce will come up during naturalization application and your GC could then be revoked as fraudulent, because it was approved with a notion that you were happily married when in fact you were in divorce proceedings.

Waivers, as a rule, do get approved, but also get scrutinized more.

[inloveVEN 46]

inloveVEN,

Thanks for the reply. But it seems (according to this discussion and others) that even if the marriage lasts less than two years, the green card will still be issued as long as a waiver is filed (with other evidence). So, if things are done this way, I would think the two-year "requirement" is more of a recommendation.

Hi

I am not sure if i got you.

the visa that you can find is called CR1-IR1, for inmediate relative. If by the time they approve your visa, you have less than 2 years married, you will receive a conditional green card, valid for 2 years, this conditional status needs to be removed, showing evidences that this is a real marriage and it can be done starting 90 days prior of the expiration date.

but if by the time while those 2 years of your conditional permanent residence yo file the divorce you dont need to wait till 90 days before, you can apply to waive the joint filing requirement, of course is needed to prove the good faith of your marriage. But you always need to remove your conditional status because if you dont do that they will begin an inmediate process of removal.

ROC

If your marriage is older you will receive a permanent green card and you dont need to do anything.