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

[VanessaTony 3,567]

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.

You are correct, the person who said you don't need the decree has no idea what they're talking about.

You MUST file I-751 in the 90 days before your GC expiring. If you do not have the decree by that time, you file WITHOUT the decree, and you will receive an RFE.

The RFE will give you a set amount of time to obtain the decree and return it. If you do not have the decree in time for your deadline that's where things start to get "fun" but I don't know enough about that part, hopefully someone else can help you.

This topic should not have been split from your other so, I will request them to be merged and both brought here if that is your request.

[Joshua Kaufman 1]

Thanks for confirming my understanding. Merging would be fine, thanks.

[Okalian 41]

I second Vanessa&tony's advice. I'd also like to add that in your case (assuming you still reside in San Francisco) you'll apply at CSC, which processes I-751's much quicker than VSC and will likely send you the RFE very quickly. They'll still give you 87 days, but still.

Again, you'll only need the divorce complaint, NOT THE DECREE, to file. However, you'll need the decree once they ask for it as part of processing the waiver.

[Krikit 1,163]

Duplicate threads have been merged.

[indian guy 13]

you are right you need divorce degree if your spouse is alive.. I was wrong. Matter of anderson..supra. and USCIS memo Year 2003

http://www.uscis.gov/files/pressrelease/CRwaiver041003.pdf

[indian guy 13]

you are right you need divorce degree on the final removal of condition but, to file a waiver you only need a complaint.

If you are running out of time and reaching your two years and complaint is already filed then it would always better to file waiver. once waiver is filed it will be pending till the divorce decree.

you can atleast save the statuspending disposition of divorce.

USCIS will either give you another date or initiate removal proceedings. If removal proceedings started, IJ will grant you the time for divorce.

Again, you don't need divorce decree to file the condition removal, you need decree to complete the process and condition removed.

if you don't file and just wait to remove condition and timelimit expired, you lost status.

Matter of anderson.

here is the link. that clears lot of questions.

http://www.uscis.gov/files/pressrelease/CRwaiver041003.pdf

[Brother Hesekiel 2,235]

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.

Pascal.

you need to be careful when giving advice if you are not knowledgeable enough about the subject. It's only human to make mistakes, and we all make them once in a while, but it's written in stone that a singularly filed I-751 cannot be adjudicated without the final divorce decree. If you don't know this, I suggest you keep on reading for a while until you grasp the rather tricky mechanics of filing for ROC when separated, but not divorced.

[Okalian 41]

it's written in stone that a singularly filed I-751 cannot be adjudicated without the final divorce decree.

thats the part

Edited October 15, 2010 by Okalian

[Joshua Kaufman 1]

Unless ofcourse it's based on abuse

No abuse here. In fact, I'm happy to say that we're still good friends

[indian guy 13]

oct 13 on my last court hearing ,immigration judge accepted the 751 wavier form alien and gave him another date in march 2011. first his attorney and judge was debating for the date in January 2011 but his attorney had another hearing in NYC, His divorce was pending and he filed for Remove condition but He was put into removal. His attorney told judge that his divorce is in final state. I was only writing what I have seen in court.

[Brother Hesekiel 2,235]

Pacal,

that's right. That comes after USCIS is unable to adjudicate the I-751 because there's no divorce decree. USCIS's automatic drones will initiate deportation proceedings. The applicant will have his day in court. At that time the applicant's attorney will ask the judge to put the deportation proceedings on hold until the divorce is final and the DIVORCE DECREE is available. It will then be forwarded to USCIS at which time they finally can adjudicate the I-751.

The message here is this: no divorce decree, no ROC.

[Joshua Kaufman 1]

Here's the latest: We filed the I-171 last year. USCIS sent an RFE back in October, which we returned along with an explanation that we were filing for divorce but didn't have a divorce decree yet. We expect to have a divorce decree within the next week or two.

Today we received an appointment for the I-171 Joint Petition. USCIS is asking me to be there and that we bring as much evidence as possible to establish that our marriage was bonafide. First off, I can't be there as I'm not currently in the same city/state as my ex-wife. Secondly, I'm a little confused why they're asking for all the evidence when they already sent an RFE. I guess they want us to show the same evidence again?

My question is this: given that I can't be at the appointment, should we cancel it even though we'll be divorced by then, and we'll have a divorce decree to present? Or should we reschedule it so that together we can explain our situation to the officer?

As always, thanks for your help!

[VanessaTony 3,567]

Here's the latest: We filed the I-171 last year. USCIS sent an RFE back in October, which we returned along with an explanation that we were filing for divorce but didn't have a divorce decree yet. We expect to have a divorce decree within the next week or two.

Today we received an appointment for the I-171 Joint Petition. USCIS is asking me to be there and that we bring as much evidence as possible to establish that our marriage was bonafide. First off, I can't be there as I'm not currently in the same city/state as my ex-wife. Secondly, I'm a little confused why they're asking for all the evidence when they already sent an RFE. I guess they want us to show the same evidence again?

My question is this: given that I can't be at the appointment, should we cancel it even though we'll be divorced by then, and we'll have a divorce decree to present? Or should we reschedule it so that together we can explain our situation to the officer?

As always, thanks for your help!

Read this Q&A here: http://immigration.lawyers.com/ask-a-lawyer/I-751-Jointly-Filed,-Marriage-Fell-Apart,-What-NowU-8009.html

When filing for the I-751, whether you're divorced or together one requirement is the same, proving that your marriage is valid and bonafide. That means showing joint account records, insurance etc etc. That info could now be gone (obviously once divorced no more joint accounts or joint residence) but you need to show that it DID at one stage exist, that you tried to make your marriage work.

If you file the I-751 when divorced (or after filing but not approved) you would file as divorce. As you now know your lawyer was wrong who said file it jointly and then just wait for the RFE.

So I don't know whether she should attend the interview with the decree and the evidence at which stage the application would be converted to a waiver application, or if she should make an infopass to have it converted to a waiver application (showing the divorce pending paperwork or decree if she has it). I would probably attend the interview myself. Problem is that now the interview's been scheduled, if changing to a waiver application means changing the interview she MIGHT get denied if she doesn't attend the first interview because sometimes the interview change doesn't go through properly and they just assume you missed the interview.

Hopefully someone else will advise whether she should just attend the interview without you or try and get it converted BEFORE the interview..

Good luck!

[Okalian 41]

Usually when a divorce takes place during removal of conditions, the beneficiary should withdraw the joint I-751 and refile it with the waiver option. There has been a few cases here when the I-751 was filed jointly but the couple were divorced by the time it was approved. In that case, it caught up with the beneficiary when (s)he filed for N400 and it was brought to USCIS' attention that the divorce was finalized prior to adjudication of I-751. Big mistake...

Well anyway, in your case she can go to the interview on her own, hopefully with a divorce decree, and request to change the category of I-751 from jointly filed to divorce. Worst case scenario, they will send her back home and ask her to re-file from scratch. But i'm almost positive she can change the category on the spot during the interview (i read it here before when someone had a similar situation but changed it from battered spouse to divorce).

I definitely advise you to consult with an immigration attorney to clear things up.

[Joshua Kaufman 1]

Thanks so much for your replies, Okalian and Vanessa&Tony!

Does anyone else have any advice to offer?

P.S. Should I create a new thread to ask the interview question?