need help understanding options

[PAUSC 0]

in 2008, I started a relationship with someone who for the past 8 years has been attempting to get her Conditions removed from her Visa.

She was married to a USC in 2000 in Romania. They both moved here but separated prior to the 2 year mark. The USC applied for divorce in Romania and it was granted in 2004. He was unwilling to file a joint waiver, but provided her with a copy of the Romanian divorce decree. I believe the marriage was in good faith, but she has very little evidence to prove it, and there has been a substantial amount of time lapsed between then and now.

She presented this document with her immigration lawyer and was told it was insufficient. She has spent the last 8 years attempting to get a US divorce to no avail as the USC is unwilling to participate citing the previous Romanian divorce. This seems to have hit a dead end.

Our last effort is to try and get the official copies of the divorce decree notarized and translated and submit them as evidence.

My questions are this:

1. How long will Immigration give her to sort this out. She has not received any notices to appear to my knowledge.

2. If she is actually divorced in Romania, but Immigration doesn't recognize the decree, could she remarry while she is still here?

3. If they don't recognize the decree, does she have any other options

Edited November 29, 2010 by PAUSC

[trillium13 84]

I'm confused. Did she have a 2 year GC?

[George & Gina 29]

I'm confused. Did she have a 2 year GC?

+1 Is she trying to remove the conditions from her permanent resident (green) card or trying to adjust status? Has she been getting legal extensions of her stay in the US or is she presently out of status?

George

[JimVaPhuong 4,863]

in 2008, I started a relationship with someone who for the past 8 years has been attempting to get her Conditions removed from her Visa.

She was married to a USC in 2000 in Romania. They both moved here but separated prior to the 2 year mark. The USC applied for divorce in Romania and it was granted in 2004. He was unwilling to file a joint waiver, but provided her with a copy of the Romanian divorce decree. I believe the marriage was in good faith, but she has very little evidence to prove it, and there has been a substantial amount of time lapsed between then and now.

She presented this document with her immigration lawyer and was told it was insufficient. She has spent the last 8 years attempting to get a US divorce to no avail as the USC is unwilling to participate citing the previous Romanian divorce. This seems to have hit a dead end.

Our last effort is to try and get the official copies of the divorce decree notarized and translated and submit them as evidence.

My questions are this:

1. How long will Immigration give her to sort this out. She has not received any notices to appear to my knowledge.

2. If she is actually divorced in Romania, but Immigration doesn't recognize the decree, could she remarry while she is still here?

3. If they don't recognize the decree, does she have any other options

First, let's get the terminology straight as precision and accuracy are critical to getting the right answers.

She was trying to "get the conditions removed from her green card ", and not "her visa". Visas don't come with conditions that you can have removed.

Her husband refused to file a "joint petition". There is no "joint waiver" when removing conditions. What DOES exist is a waiver of the joint filing requirement, but she wouldn't need her husband to get this. She would do it on her own.

Ok, applied for divorce before the two year mark. Divorce was granted in 2004. Presumably, the conditional green card expired a LONG TIME AGO, and she's been out of status in the US ever since.

There is no reason to believe that USCIS would not accept a divorce decree issued in Romania. If she's legally divorced in Romania then she's legally divorced in the US. You would just need to get the decree translated into English so that USCIS could read what it says. USCIS accepts foreign divorce decrees translated into English with all sorts of fiancee and spousal visa petitions. They would accept one with an I-751. There is no point in getting anything notarized - notaries (for the most part) just act as legal witnesses to a signature, and there's nothing on the divorce decree that needs to be signed. The translation will need a statement from the translator that they are fluent in English and the foreign language, and qualified to accurately translate the document.

Ok, the I-751 is supposed to filed within 90 days prior to the expiration of the conditional green card, and it's supposed to filed jointly by both the immigrant and US citizen spouse. So, there are two problems - she can't file jointly because she's divorced (the fact that her ex-husband won't cooperate would only be relevant if they were still married), and she didn't file in the time frame she was supposed to.

An immigrant can request a waiver of the joint filing requirement for several reasons, one of which is if the marriage ended in divorce or annulment. Two things are required - a final divorce decree, and evidence the marriage was entered into in good faith. That would solve the first problem.

USCIS will permit a late filed I-751 under certain conditions:

Failure to file before the expiration date may be excused if you demonstrate when you submit the application that the delay was due to extraordinary circumstances beyond your control and that the length of the delay was reasonable.

Ok, this is a killer. We're talking about at least FIVE YEARS LATE! The "extraordinary circumstances beyond your control" would need to be something as severe as being stranded on a desert island, or being in a coma, or something equally serious. Even if she had a valid reason that met their criteria, it's highly unlikely they would consider five+ years to be a delay that "was reasonable". I don't think she's got a snowball's chance in he!! of getting her green card reinstated by submitting an I-751 now.

As to your second question - YES! She can remarry. As I said before, her divorce is final and should be valid in the US. If you are a US citizen, then she should be able to adjust status based on marriage to you.

CAVEAT: If USCIS has started removal proceedings against her then they must presume that any marriage she enters into now is a sham for the purpose of evading immigration law. The burden of proof for a bona fide relationship will be much higher than it would for most other people, and she may end up in front of an immigration judge.

Don't marry this woman if your motive is to help her immigrate. It's illegal. If you get caught then she'll be deported, but you could face fines and/or jail time. Consider your relationship as if immigration was not an issue, and she was a US citizen. Would you still marry her? If you're not sure then don't do it. On the other hand, if the answer is "yes" then get married, and go ahead with the AOS processing. Be prepared to hire a lawyer if it turns out she's in removal proceedings.

Edited November 29, 2010 by JimVaPhuong

[PAUSC 0]

Thanks for your responses, and clearing up my lack of understanding. Some follow up below.

She had presented a copy of the divorce decree to Immigration in 2005, but they questioned the validity, to which she sought to get a US divorce. I do not know their specific objection.

The circumstances for the 5 year delay were that the USC was unreachable (his whereabouts were unknown) as she tried to get a divorce in the US.

This year the USC was finally located and served with divorce papers, but immediately filed for the proceedings to be dismissed stating that there was already a divorce in Romania, and supplying the same copy that was previously presented to Immigration.

My intention is/was to eventually marry her, the Romanian divorce has been getting in the way of that. I cannot determine if she is free to marry. Any ideas on how to get it recognized by Immigration or the state we live in?

If she was divorced in Romania, would she have to complete her previous process to remove conditions, or could she abandon that effort and start again with me?

[milimelo 4,500]

Thanks for your responses, and clearing up my lack of understanding. Some follow up below.

She had presented a copy of the divorce decree to Immigration in 2005, but they questioned the validity, to which she sought to get a US divorce. I do not know their specific objection.

The circumstances for the 5 year delay were that the USC was unreachable (his whereabouts were unknown) as she tried to get a divorce in the US.

This year the USC was finally located and served with divorce papers, but immediately filed for the proceedings to be dismissed stating that there was already a divorce in Romania, and supplying the same copy that was previously presented to Immigration.

My intention is/was to eventually marry her, the Romanian divorce has been getting in the way of that. I cannot determine if she is free to marry. Any ideas on how to get it recognized by Immigration or the state we live in?

If she was divorced in Romania, would she have to complete her previous process to remove conditions, or could she abandon that effort and start again with me?

Can't you go to the ROmanian consulate to get the divorce decree notarized and translated? They should be able to confirm authenticity of the paperwork.

[JimVaPhuong 4,863]

Thanks for your responses, and clearing up my lack of understanding. Some follow up below.

She had presented a copy of the divorce decree to Immigration in 2005, but they questioned the validity, to which she sought to get a US divorce. I do not know their specific objection.

The circumstances for the 5 year delay were that the USC was unreachable (his whereabouts were unknown) as she tried to get a divorce in the US.

This year the USC was finally located and served with divorce papers, but immediately filed for the proceedings to be dismissed stating that there was already a divorce in Romania, and supplying the same copy that was previously presented to Immigration.

My intention is/was to eventually marry her, the Romanian divorce has been getting in the way of that. I cannot determine if she is free to marry. Any ideas on how to get it recognized by Immigration or the state we live in?

If she was divorced in Romania, would she have to complete her previous process to remove conditions, or could she abandon that effort and start again with me?

She can't get divorced twice. She's already divorced. USCIS wasn't asking her to get divorced again. They were asking for proof that the divorce decree was legitimate and not a doctored up fake. They apparently suspected she conjured up a divorce decree without actually getting divorced so that she could remove conditions without her husband's cooperation.

Look, this is what was probably going on in the IO's mind. The marriage is on the rocks. The US citizen spouse won't cooperate with a joint filing to remove conditions, probably because he thinks he was used to get a green card. The immigrant spouse doesn't want to file for a divorce because she's afraid the decree will include something about his accusations of her green-card-by-marriage fraud, so she fabricates a divorce decree supposedly obtained abroad. You and she know this isn't what happened, but the IO is suspicious. He wants proof the divorce decree is legitimate. Trying to get another divorce in the US would only confirm to him that the first divorce was a fake.

Abandon any plans of getting another divorce. This will only blow up in your face. Do whatever is necessary to get the validity of the divorce decree confirmed. You should be able to contact the consular section of the Embassy of Romania and see if they can authenticate the divorce decree. It probably won't be necessary to do this in order to get a marriage license in the US, as any county clerk would probably accept the Romanian divorce decree without questions, but USCIS obviously has a problem with it.

Once you get the divorce decree authenticated then marry her and file for a green card. Don't bother pursuing the removal of conditions. It's been too long, and it there's very little chance it would be approved.

[PAUSC 0]

That helps alot. She had an immigration lawyer direct her to pursue the US divorce, but it seems that was the wrong advice.

To be clear, you do not believe she should go back to USCIS and try to have the conditions removed? What would be the risk other than denial. Would that start the process to remove her from the country?

Thanks again for your help.

[Brother Hesekiel 2,236]

If you believe you have a good chance to win the lottery jackpot on Saturday, by all means go ahead and put money, time, and effort into removing conditions of a residency that has been considered abandoned many years ago. Good luck!

If you don't think you are the chosen one, you should get married and file for AOS instead. I only hope that no removal proceedings have been initiated for your girl friend (I call her that because by your own admission you wouldn't marry her if she couldn't stay), which "appears" to be not the case, so choosing the straight road instead of trying to tackle a mountain pass seems to make more sense here.

[JimVaPhuong 4,863]

That helps alot. She had an immigration lawyer direct her to pursue the US divorce, but it seems that was the wrong advice.

To be clear, you do not believe she should go back to USCIS and try to have the conditions removed? What would be the risk other than denial. Would that start the process to remove her from the country?

Thanks again for your help.

Ok, you said before that USCIS didn't accept her divorce decree in 2005. The only reason she would have presented her divorce decree to USCIS was because she was filing to remove conditions, and seeking a waiver of the joint filing requirement because of her divorce. This means she's already been down this road, and they denied her because of a questionable divorce decree. Usually, when USCIS rejects a petition they allow 30 days for the applicant to petition for the case to be reopened, along with new evidence. That means she had 30 days to get the divorce decree validated and resubmit to USCIS. If she didn't do that (and it sounds like she didn't) then they almost certainly started removal proceedings. This is standard procedure.

Ask her if she ever got any papers ordering her to go to a "master hearing". If she says no then ask her if she moved shortly after her ROC was denied. It's possible she may have already been ordered deported in absentia.

Yes, I do not believe she should try to file an I-751 to have the conditions removed. First, she's not a conditional resident anymore, and hasn't been for more than five years. She'd need a very solid reason for waiting this long, and I don't believe she has one. What is the risk? Right now, she's not on their radar screen. They have bigger fish to catch than one alien out of status. There's more than 12 million of them to keep USCIS and ICE busy. If she files for ROC and it turns out that she's already been deported then the interview will not only end with a denial, but she'll probably be taken into custody. By filing the ROC she's forcing USCIS to do something about her.

I'm surprised a lawyer would recommend someone try to obtain a divorce when they're already divorced. Is this guy an immigration lawyer, or a family law attorney?

By the way, did her ex-husband only give her a photocopy of the divorce decree? If she doesn't have an original certified copy of the decree then THAT'S probably why they rejected it!

Edited December 1, 2010 by JimVaPhuong

[PAUSC 0]

1. She notified them of an address change and had received mail at the new address.

2. The lawyer was an immigration lawyer, now we have been working with a divorce lawyer to try to resolve the issue, but that seems like the wrong move, although we now have contact with the husband through his lawyer.

3. Yes, she only had a copy of the divorce decree. She previously tried to locate a copy on her own via friends back in Romania, but she was unable to. Husband's whereabouts at that point were unknown.

She is trying again to find the divorce record in Romania. Unknown if this will work out. It's possible the documents don't exist and the husband forged them, or paid someone to file them. She just got them in the mail after she tried to file for divorce in US on her own in 2004

[JimVaPhuong 4,863]

1. She notified them of an address change and had received mail at the new address.

2. The lawyer was an immigration lawyer, now we have been working with a divorce lawyer to try to resolve the issue, but that seems like the wrong move, although we now have contact with the husband through his lawyer.

3. Yes, she only had a copy of the divorce decree. She previously tried to locate a copy on her own via friends back in Romania, but she was unable to. Husband's whereabouts at that point were unknown.

She is trying again to find the divorce record in Romania. Unknown if this will work out. It's possible the documents don't exist and the husband forged them, or paid someone to file them. She just got them in the mail after she tried to file for divorce in US on her own in 2004

Ok, this complicates things considerably. If she can't get a validated copy of the divorce decree then she can't prove she's divorced. You need to get this resolved before you do anything else. Filing another divorce in the US obviously won't work because her husband has a divorce decree from Romania that was apparently good enough to stop her previous attempt to get a US divorce. You can't get married because it might turn out your marriage is invalid if the Romanian divorce decree turns out to be fraudulent. You need to get confirmation from the Romanian government whether the divorce is valid or fraudulent. If it turns out to be valid, then you can marry and apply for adjustment of status. If it turns out to be fake then she can file for a US divorce. Her husband will probably move for dismissal again, but she'll be able to counter that motion with her evidence that his divorce decree is a fake.

One way or another, you can't move forward until you have proof of her marital status that would satisfy both a US family law court, and USCIS.

If she got correspondence from USCIS well after her previous ROC was denied then there's a chance they never started removal proceedings against her. It's difficult to say with any certainty. Some correspondence is generated nationally; i.e., one service center enters an order into the computer and it triggers another service center to send the mail. Some correspondence is generated locally; i.e., the local service center sends the correspondence directly using the address they have on file. Other than filing a petition, I'm not aware of any way she could find out for sure. Perhaps a FOIA request. I'm really not sure.

If they haven't started removal proceedings then you can marry her and she can adjust status as soon as you get the divorce decree problem resolved. If they've started removal proceedings but never ordered her deported then you will face substantial additional scrutiny during the AOS interview. As I said before, they are required to presume the marriage is a sham for the purpose of evading immigration law, and you're going to have to prove otherwise. If they've already ordered her deported then you'll need an I-212 waiver before her AOS can be approved. An I-212 waiver is permission to reenter the United States after a previous order of removal. I don't know if an I-212 waiver request can be filed "in-country", but I suspect it probably can. I know that I-601 waiver requests can be filed in-country.

[PAUSC 0]

Thanks again, this perspective has been very helpful. I'll post back if I have any further questions once we get the validity sorted out.