Sadly separated, 2 Year coming up.. what to do?

[japau 1]

I wouldn't listen to all the "play at home attorneys" on this board. First, "visa fraud" or "immigration fraud" is not the same as "I sold you a washing machine that doesn't work." The first thing it requires is an intent to circumnavigate the immigration law to get someone a visa. She already has not only a visa, but a green card as well, both lawfully obtained. Therefore, these people have no idea what they are talking about (not to mince any words). There is nothing on the application that would require you to lie. You are not required to lie in an affidavit. The truth is relative. As we say in the legal profession: if you don't like "this" truth, invent another. Defense lawyers do it every day. Does that make it right? You bet it does! Ask Rumsfeld and Bush! If it's good for them, it's good for the rest of us. OK, enough of that...

The law draws a line, and sometimes you can even step over the line and jump back, and play in and around the gray areas. However, you don't even have to do that in this instance. To REMOVE CONDITIONS (which is all we're talking about here, not getting a visa or immigrating, which were completed lawfully) you only have to be STILL MARRIED at the two year mark. Nothing in there says you have to be living together or in a sexual relationship or anything else - just STILL MARRIED. Last time I checked, if you weren't divorced or annulled, you were STILL MARRIED. Check the law, and go with that. You can't be involved in visa fraud when you are not securing a visa. You cannot be involved in immigration fraud if the party has already immigrated. Again, I'm sorry, but there are too many people that have no clue what the are talking about offering opinions and judgments...don't take my silence on this issue in the future as agreeing to any arguments: I'm just not going to address the clueless any futher. Meanderthal, we went through our process at more or less the same time, and I remember because my wife was living in Venezuela although she is Chilean. Again, I'm sorry for what you are going through...

J

Edited September 24, 2006 by japau

[japau 1]

http://www.uscis.gov/lpBin/lpext.dll/inser...htm#slb-cfrp216 especially section 216 B 1

Read and understand these statutes, and then the judgers and doubters can apologize for their wrong opinions and slanderous statements...

Edited September 24, 2006 by japau

[PurrSuede 0]

First, "visa fraud" or "immigration fraud" is not the same as "I sold you a washing machine that doesn't work." The first thing it requires is an intent to circumnavigate the immigration law to get someone a visa.

and

The other option is to just do her the favor and go about it as if you were still together so she can get the permanent card - no one is likely to find out - how could they?

Considering Immigration law states:

NSC issued a memo in December 2004, which was then revised in early 2005, apprising aliens that are in a period of separation at the time the I-751 should be filed, to inform their Service Centre that they are currently separated. A waiver cannot be submitted until a divorce decree is available.

I'll let you decide for yourself who's suggesting to WHOM to circumnavigate current immigration law to obtain a benefit.

And if you look at the I-751 itself:

9. Have you resided at any other address since you became a permanent resident? (If yes, attach a list of all addresses and dates.)

Usually if someone is "separated" they reside at another address, and that alone will likely draw the attention of the USCIS examiner if it is a different address than yours.

The petition, whether filed by the alien alone, or jointly also says right above the signature block:

I certify, under penalty of perjury of the laws of the United States of America, that this petition and the evidence submitted with it is all true and correct

That would include question #9. It does not say "you can go about this as if you are still together...."

And the instructions for the I-751 state clearly:

Penalties.

If you knowingly and willfully falsify or conceal a material fact or submit a false document with this request, we will deny the benefit you are filing for and may deny any other immigration benefit. In addition, you will face severe penalties provided by law and may be subject to criminal prosecution.

It does not say "the law is gray in this area, so feel free to can step over the line and jump back, and play in and around the gray areas". I would not suggest that as a defense either, should you be challenged on your misrepresentation.

Sooooooo even "if no one is likely to find out," it would appear there are substantial penalties for "knowingly and willfully falsifying or concealing a material fact" (such as the fact you are separated and not living together).

And I have no doubt that "going about it AS IF you were still together" would likely be looked at by the USCIS as "knowingly and willfully falsifying or concealing a material fact" IF IT WERE KNOWN.

I would suggest you speak with an immigration attorney (which you indicated you had). I was in the same situation as you (separation from my spouse prior to lifting of conditions) and I sought his advice, because my ex- proposed exactly the same scenario that this member is proposing to you, specifically to "pretend" that we were still together to get her card.

I was informed by my immigration attorney, who had 20 years practicing as a staff attorney for the INS/USCIS before opening his private practice, that to do so would be considered FRAUD by the USCIS.

As for the truth being relative, you decide whether misrespresenting material facts on a petition to obtain a benefit is lieing, fraudulent, or whatever.

I don't see anything in the USCIS warning that says "the truth is relative, so please fill out this form with as relative a truth as you care to present to us."

If you want to "play in the gray areas" as this name-calling "lawyer" is proposing to you to do, then by all means feel free. However, I doubt he will stand by your side representing your interests, should the USCIS "catch you" in your misrepresentation, however as he said "no one is likely to find out, how could they?" so you decide in what path and direction that the truth of the situation actually lies.

As for people knowing what they are talking about, you can always call the USCIS, or even make an appointment with an USCIS officer with Infopass and ask the question, if you don't want to pay an immigration attorney for his legal opinion.

As for people who don't know what they are talking about, I simply suggest that you look at who is advising you to "misrepresent" your current situation to the USCIS and who is suggesting that you honestly and truthfully inform them of all facts and circumstances surrounding the current status of your marriage and your alien spouse.

-- Dan

[Jersey 0]

I will get right to the point here... my wife left me in May. Her 2-year will be up in February. Although I have been desperately trying to reconcile things and get her back, she says she is happy and has no desire to. Although everyone I have asked, including an immigration counselor, says I should just get the divorce and let her deal with it; I am reluctant to do so. Both because I would hate to see her get deported over something that could happen to anyone, and I still hope we can get back together someday.

So my question is, would it be wise to just stay separated, file the I-751 jointly with all the proof, and just be up-front in the interview? Or get the divorce and let her just file the waiver? It would be nice if we could just submit all the proof documents and not have to interview. We have a joint bank account, taxes for 2005, an apartment lease together, she's on my insurance, and car insurance. I could probably get some friends to sign affidavits, but I doubt my mother would she's pretty po'ed at her right now

If it helps at all I know the pain that you must be going through as I loved my husband very much but he was adament that he wanted out and that it was over for good no turning back, I had a bit of a breakdown it was never diagnosed but I lost 20pounds and cried at everything I was a mess for 3-4 months, then I decided enough was enough and that I had to get on with my life I got a great job and started dating other guys but never really stopped thinking of him, well the phone call came one day after 7 months please come back, I did it did not work, in that time frame we adjusted status.

My point is this in case you are wondering where it is going there is always a reason why folk separate and you need to get to the root of it before you too can move on, my ex had a drink problem some kind of chemical imbalance that would turn him into a monster and I was terrified but I knew the good side was there, I am not saying she has the same problem but my ex also had the issue of a cultural differance, he could not handle that I had opinions and was educated came from a good family and he resented that which was voiced whilst drinking, sometimes you have to let people find out how to change themselves you just can't change them let them figure it out if they really want to they will.

Don't for goodness sakes lie to Immigration and file the 1751 saying that you are still together if they find out you lied it could ruin you, get the divorce and let her file a waiver, it sounds like you had a good marriage for a period of time.

Even if you are divorced you can still re-marry.

I now live with my ex- husband (2nd attempt) and he has not had a drink for over a year and its going great its been a struggle but what I trying to say is that never give up if its ment to be and in time she may just come back.

Good luck and hold your head high you sound a nice man she just needs to realise that give her time.

Edited September 24, 2006 by JERSEY

[diadromous mermaid 36]

I wouldn't listen to all the "play at home attorneys" on this board.

I don't believe any members are attempting to be lawyers, in fact, I'd say most are clear to point out that they are not. There is one exception, you, who claims that being an attorney means that he knows what is legal and what is not. By the way, are you an immigration attorney?

First, "visa fraud" or "immigration fraud" is not the same as "I sold you a washing machine that doesn't work." The first thing it requires is an intent to circumnavigate the immigration law to get someone a visa. She already has not only a visa, but a green card as well, both lawfully obtained.

While the two have not been dicussed here, as far as I can see, I am curious. Really? Visa fraud is not the same as immigration fraud? Are we once again speaking of semantics? In fact, if an alien lies to his or her SO about his or her intentions in marriage, and secures first a visa to enter the USA and then, subsequently status conferred by virtue of that marriage to the US citizen, (who is operating under the impression that the alien's intent is to enter into marriage for marriage sake), then what is the difference? Both the visa, and the subsequent status were acquired by misrepresentation of the alien's sole interest to gain residency.

Therefore, these people have no idea what they are talking about (not to mince any words).

And at this point, lawyer or otherwise, I can safely say that you don't either!

There is nothing on the application that would require you to lie. You are not required to lie in an affidavit. The truth is relative. As we say in the legal profession: if you don't like "this" truth, invent another. Defense lawyers do it every day. Does that make it right? You bet it does!

And what truth would that be? That parties, while occupying separate residences and in the throes of dismantling a marriage, pretend that they are not?

To REMOVE CONDITIONS (which is all we're talking about here, not getting a visa or immigrating, which were completed lawfully)

Once again, supposition on your part until all the facts relating to the alien's initial intent have been uncovered. Completing immigration process lawfully, does not simply involve filing the requisiste documents and following protocol (which in your case, could mean ignoring one protocol because you deem it not worthy, I suppose). Nonetheless, for sake of argument, in the instant case, let's presume you are correct....and you know, without question, that the alien's intent upon entering the marriage was bona fide.

you only have to be STILL MARRIED at the two year mark. Nothing in there says you have to be living together or in a sexual relationship or anything else - just STILL MARRIED. Last time I checked, if you weren't divorced or annulled, you were STILL MARRIED. Check the law, and go with that.

Would you think that this directive from the Department of Homeland Security US Citizenship and Immigration Services be sufficient to qualify as law or regulation?

March 30, 2005 NSC Flash #18-2005 Revision to NSC Flash #6-2005

This amendment seeks to correct guidance provided in a previous ‘Flash’ dated December 27th, 2004.

The amendment references conditional residents that are due to file a petition to remove their conditions, yet either are separated or have begun divorce proceedings.

The Effect of Separation/Divorce on Pending I-751 Petitions to Remove the Conditions on Residence

• If the petitioner and beneficiary are divorced at the time the I-751 should be filed, the beneficiary should file the I-751 (only s/he needs to sign) and mark "d" in Part 2.

• If the petitioner and beneficiary filed an I-751 petition jointly but separate before a decision is made on the I-751, the beneficiary should notify the NSC that he/she is currently separated by mailing the explanation to the NSC via PO Box 82521, Lincoln NE 68501-2521.

• If the petitioner and beneficiary filed an I-751 petition jointly but get divorced while the I-751 petition is pending, the beneficiary should notify the NSC that he/she is divorced, and submit a copy of the divorce decree to the NSC via PO Box 82521, Lincoln NE 68501-2521.

• If the petitioner and beneficiary are separated or have initiated divorce proceedings at the time the I-751 should be filed, the beneficiary is not eligible to file for either a joint petition or a waiver of the joint filing requirement due to divorce. An alien’s status may be terminated because they are unable to file a timely Form I-751, or they may be placed in removal proceedings. Petitioner and beneficiaries are reminded that required supporting documentation must accompany any petition.

You can't be involved in visa fraud when you are not securing a visa.

On the contrary, if specific information comes to light later that would have precluded the issuance of a visa, visa fraud can be determined.

You cannot be involved in immigration fraud if the party has already immigrated.

On the contrary,similarly, if permenent residency has already been conferred, based upon representations that later are discovered were false, immigration fraud can be determined (ex post facto).

Once again I think you are arguing semantics.

Again, I'm sorry, but there are too many people that have no clue what the are talking about offering opinions and judgments...don't take my silence on this issue in the future as agreeing to any arguments: I'm just not going to address the clueless any futher.

Admitted, but taking you quote and applying it

The law draws a line, and sometimes you can even step over the line and jump back, and play in and around the gray areas

silence can also be construed as tacit agreement. After all, isn't that really the crux of your recommendation? By ommission of the fact that they are indeed separated, that the parties tacitly represent that they are still in a viable marriage?

Edited September 24, 2006 by diadromous mermaid

[japau 1]

I never said to lie on the form - if she's living at a different address, she will obviously put that down (because she is applying). Look, you are obviously angry and bitter about your Russian ex-bride situation. The question is: what are you still doing on here? You have no wife, and no immigration pending. You are obviously just here stirring up trouble and making negative statements and being angry and bitter on things about which you have absolutely no knowledge, and no reason upon which to comment. You're just wrong, and that is that. No one said not to tell anyone the truth, and your characterizing it as such just shows that you don't have the independent knowledge upon which to base your mistaken opinion. It's kind of sad that people have nothing better to do than to come on here and make judgments, opinions and arguments (a) about things they know nothing about; and (2) with no real reson to do that other than to show how angry and bitter they truly are. So, with that all said, and knowing that I'm right, I'll not be responding any further to any of this nonsense, and affirmatively state that a "non-response" should be construed as a disagreement (since I am right) and not as a 'tacit approval.'

Edited September 24, 2006 by japau

[japau 1]

By the way, NSC Flash #18-2005 shows just how stupid the whole thing is. If you're divorced (and the marriage is over), you can still file the I-751, marking d in part 2. However, if you are just separated (and still have the chance to get back together before ending up in divorce, and even if you entered into the marriage in good faith - which would make d in part 2 still applicable) then you "shouldn't" or "can't" file, leaving the spouse open to deportation while still married. This proves the inadequacy and ridiculous nature of the system (like we need any more proof of that), and the fact that people should feel free to work around it if they so desire. Just like on "James' shortcuts," which, by the way are illegal if you read the statutes, I don't see any of you Junior Partners offering your legal opinions on those. Finally, and by the way, when you attempt to interpret statutes and apply law to fact, you are engaging in the illegal practice of law, which is a crime - shouldn't you be turning yourself in now, or does your hypocrisy not permit that? Gavel falls...case closed.

Edited September 24, 2006 by japau

[PurrSuede 0]

You are obviously just here stirring up trouble and making negative statements and being angry and bitter on things about which you have absolutely no knowledge, and no reason upon which to comment. You're just wrong, and that is that.

Pot. Kettle. I'm not calling people names. You are. The only negative statements I'm making are in regards to your advice to defraud the USCIS for the purpose of obtaining a benefit. I have every reason to comment. I've been in the exact same situation as the OP. You have not.

No one said not to tell anyone the truth, and your characterizing it as such just shows that you don't have the independent knowledge upon which to base your mistaken opinion.

I'm valuing the opinion of my immigration attorney. I asked him exactly the specific question that you seem to indicate that it's ok to do: to pretend you are still together. He told me it would be construed as fraudulent by the USCIS. If you deem that mistaken, that's your choice to make.

It's kind of sad that people have nothing better to do than to come on here and make judgments, opinions and arguments (a) about things they know nothing about; and (2) with no real reson to do that other than to show how angry and bitter they truly are.

I agree. So why are you continuing to do so?

So, with that all said, and knowing that I'm right, I'll not be responding any further to any of this nonsense, and affirmatively state that a "non-response" should be construed as a disagreement (since I am right) and not as a 'tacit approval.'

You also said before you wouldn't bother to respond, but I see that we can't take you at your word, either. Though I know of no reason why we should, anyway, considering the maligning qualities of your posts and even your tagline itself.

I will honor ~my~ word, as beyond ~this~ posting, I certainly don't find your misguided advice and suggestion of FRAUDULENT (misrepresentation) activity to be worth any further response to. Your actions and words speak for themselves.

-- Dan

[japau 1]

Angry and bitter...I feel sorry for you.

[JenT 0]

Angry and bitter...I feel sorry for you.

He has every right to be. And your point at sounding so condescending is... what, exactly?

Dan has a lesson from life experience to offer in this situation. What do you have to offer besides conjecture?

[diadromous mermaid 36]

I never said to lie on the form - if she's living at a different address, she will obviously put that down (because she is applying).

Actually, if what you recommended were to occur, she would not be applying, *they* would be applying and the US citizen would be affirming that the marriage is intact. I am sure he would *like* that the marriage be intact, but unfortunately, per his own declaration, that contraverts what his spouse states.

Look, you are obviously angry and bitter about your Russian ex-bride situation. The question is: what are you still doing on here? You have no wife, and no immigration pending. You are obviously just here stirring up trouble and making negative statements and being angry and bitter on things about which you have absolutely no knowledge, and no reason upon which to comment. You're just wrong, and that is that.

Why do you so insist on classifying his statements as angry and bitter? He is dealing with all of the emotion and turmoil and the aftermath of quite possibly having been deceived. Dealing with reality is not necessarily bitter, nor does it necessarily have to be angry, although if it does manifest itself into a period of anger, why not? The real question is whether one acts out of anger or not.

No one said not to tell anyone the truth, and your characterizing it as such just shows that you don't have the independent knowledge upon which to base your mistaken opinion.

Hmm. Well when one gives a recommendation, but the added comment

"how would they know"

it does convey some type of concealment, and that, in my opinion is not being truthful.

It's kind of sad that people have nothing better to do than to come on here and make judgments, opinions and arguments (a) about things they know nothing about; and (2) with no real reson to do that other than to show how angry and bitter they truly are. So, with that all said, and knowing that I'm right, I'll not be responding any further to any of this nonsense, and affirmatively state that a "non-response" should be construed as a disagreement (since I am right) and not as a 'tacit approval.'

Indeed, you are so *right* and rigid in your interpretation, you have even resorted to acknowledging that even if the regulations suggest a certain procedure, you don't believe they should be followed!

[diadromous mermaid 36]

By the way, NSC Flash #18-2005 shows just how stupid the whole thing is.

Believing that a regulation is stupid, and nonsensical, does not give one a viable excuse to pay no consideration to it

If you're divorced (and the marriage is over), you can still file the I-751, marking d in part 2.

Correction. If divorced, one can file a wiaver of the joint filing requirement of the I-751 form. The fact that the same form is used is academic. The two processes are distinct.

However, if you are just separated (and still have the chance to get back together before ending up in divorce, and even if you entered into the marriage in good faith - which would make d in part 2 still applicable) then you "shouldn't" or "can't" file, leaving the spouse open to deportation while still married.

No one said that proper procedure in the case of a marriage breakdown during the period between the award of LPR after adjustment of status and the filing of an I-751 had been clearly addressed in the INA. In fact, these memos that you are "poo pooing" were introduced to better define what to do in some rather more infrequent circumstances, as a direct result of the steps to try to weed out those attempting to abuse the conference of marriage-based immigration benefits. That being said, have you ever considered that this little *wrinkle* might be an oversight, indeed, but it also might have some unspoken benefit to the USCIS in order to continue to weed out abuse in that it prompts the parties to make a decision on the future of their marriage?

Furthermore, where in this memo do you see that the alien is deprived of an ability to ensure his or her continued status in the event that he or she is only separated at the time the jointly filed petition should be submitted? The memo clearly states that if the alien is separated he/she should notify the USCIS. That puts the Service on notice and the Service has the discretion to permit a late filing.

The fact is, as far as I can see, and this is simply an opinion (note, that I stated opinion, and implied in that is that it is not advice, contrary to your declaration that your's is right) if the parties are in a failing marriage at the time when the I-751 should be filed, the statutes do not preclude a joint filing, should the US citizen spouse be willing, but that jointly field I-751 must be withdrawn if the marriage terminates prior to adjudication. I believe it goes one step further to suggest that if the parties are separated and the separation is either a legal one (in which case it is tantamount to a dissolution of the marriage for some states) or likely to culminate in divorce proceedings, then the alien should not file a joint petition with the US citizen spouse.

This proves the inadequacy and ridiculous nature of the system (like we need any more proof of that), and the fact that people should feel free to work around it if they so desire.

Does this suggest that it someone finds that a system, be it an administratve system or the legal system, is inadequate or ridiculous that they simply forge their own path to work around it? Wouldn't that be construed as circumnavigation?

Just like on "James' shortcuts," which, by the way are illegal if you read the statutes, I don't see any of you Junior Partners offering your legal opinions on those.

Let's see. You find that a member's method of circumnavigating the need to wait for a form, by creating it himself is *illegal*, yet you don't find that an alien creating the *appearance* of a sustaining marriage is not. I don't follow your logic. Ah, well.....

'

Finally, and by the way, when you attempt to interpret statutes and apply law to fact, you are engaging in the illegal practice of law, which is a crime - shouldn't you be turning yourself in now, or does your hypocrisy not permit that? Gavel falls...case closed.

Actually, if one is attempting to interpret the statutes, for one's own benefit, it is not an illegal practice of law. If on is applying law to fact for one's own benefit, it is not an illegal priactice of law. If one is offering an opinion of how statutes are written it is not an illegal practice of law. What is an illegal practice of law is posing as an authority, when one does not have the credentials to claim that, or offering legal advice on how to do something. As I read this discussion, all that has been offered is opinions on advice that you have offered. Gavel falls -> case closed.

Edited September 24, 2006 by diadromous mermaid

[japau 1]

I understand how excited you must be learning all these "techniques" in your high school debate class for the first time...However, you're not saying anything: you are just in disagreement and presenting arguments without any real direction (which although you try to use the simple sentence by sentence dispute thing, you use it rather clumisly, as it doesn't address the entirety of the statement or premise). The real issue: again, why are you here? You don't appear to be involved in any immigration-related endeavor...you just appear to be around offering your unsupported and insupportable opinions based on nothing: no legal knowledge, no anecdotal offering...nothing except useless words...

[diadromous mermaid 36]

I understand how excited you must be learning all these "techniques" in your high school debate class for the first time...However, you're not saying anything: you are just in disagreement and presenting arguments without any real direction (which although you try to use the simple sentence by sentence dispute thing, you use it rather clumisly, as it doesn't address the entirety of the statement or premise). The real issue: again, why are you here? You don't appear to be involved in any immigration-related endeavor...you just appear to be around offering your unsupported and insupportable opinions based on nothing: no legal knowledge, no anecdotal offering...nothing except useless words...

The point I'm making, and in it's entirety, in case it did go over your head, is that there are prescribed procedures for parties in situations like these. Procedures that, while you might feel are ludicrous, are nonetheless articulated by USCIS.

The real issue is not why I am here at all. The issue is first, that you gave improper advice, and then offered reasons why you feel that someone should feel comfortable taking it. Let's not mention the fact that you offered advice in the first place and then had the gall to claim it is right and everyone else is misinformed. And to answer your question, (very tricky, by the way, how you continue to dodge accountability for your own actions) I don't feel the compunction to advertise my background, nor do I see any requirement to broadcast my immigration status in order to have an equal right to be here.

As to your claim that I have

unsupported and unsupportable opinions, with no legal knowledge, no anecdotal offerings and useless words

, I simply offered the recommendations outlined by USCIS (the source) for members to review. If that's not a viable tool to consult, outside of consultation with a competent immigration attorney, which is always advised, then I dont know what it is you are looking for. 'Nough said?

By the way, I'd appreciate it if in future you'd relent on the condescending attitude.

[JenT 0]

I understand how excited you must be learning all these "techniques" in your high school debate class for the first time...However, you're not saying anything: you are just in disagreement and presenting arguments without any real direction (which although you try to use the simple sentence by sentence dispute thing, you use it rather clumisly, as it doesn't address the entirety of the statement or premise). The real issue: again, why are you here? You don't appear to be involved in any immigration-related endeavor...you just appear to be around offering your unsupported and insupportable opinions based on nothing: no legal knowledge, no anecdotal offering...nothing except useless words...

Diaddie is a well-respected member of this community and has always offered well-supported advice. Members would do well to consider her advice in their decisions making. You, on the other hand, are losing what little respect may have remained for you in your continued attempts to appear 'holier than thou' with your condescending attitude and conflicting advice.