Unable to file an I-751 waiver with a divorce decree; what should I do?

[Joshua Kaufman 1]

My wife immigrated to the United States with her son in late 2007, but we have been separated for about 1.5 years and plan to divorce in the coming months. I consulted an immigration lawyer about our situation and she recommended that I file a joint I-751 and then convert it to a waiver. So I filed the I-751 several months ago with a few pieces of evidence - there wasn't much that I could include since we'd been separated for so long. A few weeks later, USCIS asked her to come in for biometrics. We initially thought this meant we would be granted removal of conditions (see this previous thread on the topic), but just last week she received a Request for Evidence. The lawyer said that a RFE would be expected, and that we should convert the I-751 to a waiver at that point.

Most of what I've read about waivers says that USCIS will typically grant removal of conditions with appropriate evidence of divorce, i.e. a divorce decree. The issue right now is that we've only just started the process may not have an official divorce decree by the time we need one. I have a divorce petition - will that work? Is there anything else that we can attach to the waiver to show that the divorce is pending?

Thanks for your help!

[w8inglongtime 29]

My wife immigrated to the United States with her son in late 2007, but we have been separated for about 1.5 years and plan to divorce in the coming months. I consulted an immigration lawyer about our situation and she recommended that I file a joint I-751 and then convert it to a waiver. So I filed the I-751 several months ago with a few pieces of evidence - there wasn't much that I could include since we'd been separated for so long. A few weeks later, USCIS asked her to come in for biometrics. We initially thought this meant we would be granted removal of conditions (see this previous thread on the topic), but just last week she received a Request for Evidence. The lawyer said that a RFE would be expected, and that we should convert the I-751 to a waiver at that point.

Most of what I've read about waivers says that USCIS will typically grant removal of conditions with appropriate evidence of divorce, i.e. a divorce decree. The issue right now is that we've only just started the process may not have an official divorce decree by the time we need one. I have a divorce petition - will that work? Is there anything else that we can attach to the waiver to show that the divorce is pending?

Thanks for your help!

You have a certain time frame within to provide the documents requested in the RFE notice and it doesn't look like you'll have your divorce decree in time. If you absolutely have no other evidence to show you were married in good faith then your petition will be denied. You will then have to refile with the divorce decree then. You can't convert the original one without a decree. The divorce petition is not enough. That's for sure. So you can either wait for the denial and file alone or look around for any evidence you can lay your hands on and hope whoever has your file is in a good mood. Good luck and let's know how things go. Hopefully someone else will chime in with other solutions.

Edited September 20, 2010 by w8inglongtime

[Joshua Kaufman 1]

You have a certain time frame within to provide the documents requested in the RFE notice and it doesn't look like you'll have your divorce decree in time. If you absolutely have no other evidence to show you were married in good faith then your petition will be denied. You will then have to refile with the divorce decree then. You can't convert the original one without a decree. The divorce petition is not enough. That's for sure. So you can either wait for the denial and file alone or look around for any evidence you can lay your hands on and hope whoever has your file is in a good mood. Good luck and let's know how things go. Hopefully someone else will chime in with other solutions.

Actually, I have a reasonable amount of evidence to show that we were married in good faith, but I don't understand what good that would do us at this point given that we're separated and planning to divorce. Wouldn't that type of evidence only be useful if we were staying together?

[Brother Hesekiel 2,236]

I don't agree with your attorney's strategy. In your particular situation timing is of the essence.

Your I-751 was accepted, but cannot be adjudicated without the divorce being final. Since you are a long ways away from that -- a huge mistake purely from a ROC perspective -- you should have filed about 9 days before your wife's Green Card expires in order to buy time, valuable time.

Well, too late now.

The RFE usually gives you 88 days to provide the divorce decree. It you can't provide it, USCIS will automatically initiate deportation proceedings. The wife will have her day in court in front of an immigration judge, and her attorney will ask for the proceedings to be put on hold until the divorce is final and USCIS can finish their job adjudicating the I-751. Ugly, expensive, but not deadly.

What's needed is to provide evidence that you guys entered the marriage in good faith. That's not so hard to provide, as you surely must have lived together for some months.

Edited September 20, 2010 by Just Bob

[w8inglongtime 29]

Actually, I have a reasonable amount of evidence to show that we were married in good faith, but I don't understand what good that would do us at this point given that we're separated and planning to divorce. Wouldn't that type of evidence only be useful if we were staying together?

If you filed the 1-751 jointly and you have enough evidence, i vote you give them what they want and get it over with. The biometrics has already been done so you are 1 step closer. Have you mentioned the impending divorce on the application? If not, they will approve your case based on the evidence you have. You are still not a divorced couple yet. Reply to the RFE asap and wait and see. Hopefully you'll get approved and save you the headache of starting the process all over again with a divorce decree (not to mention another $545.00)

[Joshua Kaufman 1]

If you filed the 1-751 jointly and you have enough evidence, i vote you give them what they want and get it over with.

That would be easy enough, but it's that fraud? If they request an interview or find out that we're separated then things could become much worse. That doesn't seem like a good thing to do.

[Joshua Kaufman 1]

So you can either wait for the denial and file alone or look around for any evidence you can lay your hands on and hope whoever has your file is in a good mood.

Are you also suggesting that I just give them what they're asking for and hope they don't request an interview? Again, I'm concerned that this could potentially get me into trouble if they don't see what they're looking for.

Edited October 13, 2010 by Joshua Kaufman

[Joshua Kaufman 1]

So here's our story:

• We married in good faith but have been separated since February 2009.
  
• In July 2010, our immigration lawyer instructed us to file an I-751 with the intention that we could convert the I-751 to a waiver upon submission of our divorce decree.
  
• We filed the I-751 and received a Request for Evidence with a deadline of October 19.
  
• We filed for divorce in September 2010 and at the time of writing do not have a divorce decree.
  

There doesn't seem to be any easy solution for our situation. We can write a letter explaining the above along with evidence that we married in good faith, but I assume that USCIS will still deny the I-751 and initiate removal proceedings. As Just Bob explains above, she'll have a day in court and she'll have to ask for the removal proceedings to be put on hold until the divorce is final. In any case, I believe we still need evidence that we married in good faith.

At this point, I'm planning to write a letter as I describe above so they know that we're at least trying to do the right thing. Any other advice in the meantime would be really appreciated. Thanks so much for your help, everyone!

[Joshua Kaufman 1]

I posted a thread over in the Removing Conditions on General Residency Discussion forum before I knew about this forum, so I thought I'd link to it from here. My situation is that I'm unable to file an I-751 waiver because I don't have a divorce decree, and I'm trying to decide on the best approach. If you have any suggestions please chime in on the other thread. Thanks for your help!

[Deputy Purple 1,294]

At this point, I'm planning to write a letter as I describe above so they know that we're at least trying to do the right thing. Any other advice in the meantime would be really appreciated. Thanks so much for your help, everyone!

This is the best, most honest course of action. Hopefully the revelation that your have filed for divorce after the initial filing for ROC might initiate another RFE for the Divorce Decree. Unless it's a complicated case you can get the final decree in a couple of months.

[Joshua Kaufman 1]

This is the best, most honest course of action. Hopefully the revelation that your have filed for divorce after the initial filing for ROC might initiate another RFE for the Divorce Decree. Unless it's a complicated case you can get the final decree in a couple of months.

Thanks for your feedback! I feel like I'm doing the best thing too.

[indian guy 13]

what you mean you don't have divorce decree? did you got served or not?

[Joshua Kaufman 1]

what you mean you don't have divorce decree? did you got served or not?

I mean that I filed for divorce but don't yet have the decree. Please see the thread for full details.

[indian guy 13]

you don't need decree to remove conditions. all you need is good faith marriage waiver. you have to prove that your marriage was entered in good faith ( evidences)

even though you get the decree will doesnot prove that your marriage was entered in good faith and not to equire the immigration benifits..

If your attorney is saying to get decree, he is wrong, check with other attorney.

to remove condition wither you and your spouse both face interview and remove the bar of limitation OR, if there is any problem in relationship, alien should prove that his intention to get into marriage was good but not solely for immmigration purposes. Marriage was not sham.

getting divorce decree doesn't cut it.

[Joshua Kaufman 1]

you don't need decree to remove conditions. all you need is good faith marriage waiver.

If your attorney is saying to get decree, he is wrong, check with other attorney.

This is contrary to most of what I've read on VisaJourney and elsewhere. I'm pretty certain that I need a divorce decree in order to file a I-751 waiver.