I-751 SC divorce question

[rcrawford 0]

Hi everyone. Here is my situation. I married my USC wife in June of 2004 in the UK. We then lived together in Scotland for a year (her on a UK spousal visa) before deciding that we wanted to be closer to her family and moving to South Carolina in September last year. For various reasons the marriage was not working out and we separated, amicably, about 4 months ago (we still talk and see each other often and get on well).

Now I am considering removing the conditions of my residency and wonder what my next move should be. I understand that, when a couple get divorced, the permanent resident can then file individually for a waiver for the I-751, submitting evidence that the marriage was genuine. The problem is that, in South Carolina, we must have been already separated for a year before we can get a divorce. That would take us until May next year.

So, basically, what should I do? Can I apply for the waiver even if we are not legally divorced, just separated? My green card expires in September next year. Any advice would be much appreciated. Thanks in advance.

-/Richard

[diadromous mermaid 36]

Hi everyone. Here is my situation. I married my USC wife in June of 2004 in the UK. We then lived together in Scotland for a year (her on a UK spousal visa) before deciding that we wanted to be closer to her family and moving to South Carolina in September last year. For various reasons the marriage was not working out and we separated, amicably, about 4 months ago (we still talk and see each other often and get on well).

Now I am considering removing the conditions of my residency and wonder what my next move should be. I understand that, when a couple get divorced, the permanent resident can then file individually for a waiver for the I-751, submitting evidence that the marriage was genuine. The problem is that, in South Carolina, we must have been already separated for a year before we can get a divorce. That would take us until May next year.

So, basically, what should I do? Can I apply for the waiver even if we are not legally divorced, just separated? My green card expires in September next year. Any advice would be much appreciated. Thanks in advance.

-/Richard

The waiver application must be accompanied by the divorce decree. According to a memo issued by NSC in March 2005, in the event that an alien either separates or is in divorce proceedings at the time of the submission of the I-751, he/she is to inform the Service Centre (I imagine this places the Service Centre and local office on notice that the alien is not ignoring the filing requirement, but can't due to lack of decree). Filing an untimely application may be accepted is the alien demonstrates that such failure was due to no fault of his/her own.

[rcrawford 0]

The waiver application must be accompanied by the divorce decree. According to a memo issued by NSC in March 2005, in the event that an alien either separates or is in divorce proceedings at the time of the submission of the I-751, he/she is to inform the Service Centre (I imagine this places the Service Centre and local office on notice that the alien is not ignoring the filing requirement, but can't due to lack of decree). Filing an untimely application may be accepted is the alien demonstrates that such failure was due to no fault of his/her own.

That's a little wordy for my small brain but from it I understand that I have to wait until we are divorced in May next year before I can apply for the waiver? In the meantime, my wife and I are living separately and I know that any change of address of either the permanent resident or the sponsor must be reported to INS. Will they not be suspicious that we are living separately but still officially married?

[diadromous mermaid 36]

The waiver application must be accompanied by the divorce decree. According to a memo issued by NSC in March 2005, in the event that an alien either separates or is in divorce proceedings at the time of the submission of the I-751, he/she is to inform the Service Centre (I imagine this places the Service Centre and local office on notice that the alien is not ignoring the filing requirement, but can't due to lack of decree). Filing an untimely application may be accepted is the alien demonstrates that such failure was due to no fault of his/her own.

That's a little wordy for my small brain but from it I understand that I have to wait until we are divorced in May next year before I can apply for the waiver? In the meantime, my wife and I are living separately and I know that any change of address of either the permanent resident or the sponsor must be reported to INS. Will they not be suspicious that we are living separately but still officially married?

Suspicious? I rather doubt it. Many couples live in separate locations, and that doesn't necessarily mean the marriage is failing. But in this case, especially if your a resident in a state that requires a period of separation prior to divorce (I didn't double check that, just taking your word for it) how could USCIS find that suspicious? You have to work around your state's family law provisions. One quick thought crossed my mind, by the way, and without looking it up myself, I thought I'd ask. Is your state's requirement of 12 months separation a precursor to divorce under a certain grounds, or a provision for all divorcees prior to becoming eligible for remarriage?

Edited September 27, 2006 by diadromous mermaid

[rcrawford 0]

Suspicious? I rather doubt it. Many couples live in separate locatoins, and that doesn't necessarily mean the marriage is failing. But in this case, especially if your resident state requires a period of separation prior to divorce (I didn't double check that, just taking your word for it) how could USCIS find that suspicious? You have to work around your state's family law provisions. One quick thought crossed my mind, by the way, and without looking it up myself, I thought I'd ask. Is your state's requirement of 12 months separation a precursor to divorce, or a provision for divorcees prior to becoming elegible for remarriage?

"Divorce Law

SECTION 20‑3‑10. Grounds for divorce.

No divorce from the bonds of matrimony shall be granted except upon one or more of the following grounds, to wit:

(1) Adultery;

(2) Desertion for a period of one year;

(3) Physical cruelty;

(4) Habitual drunkenness; provided, that this ground shall be construed to include habitual drunkenness caused by the use of any narcotic drug; or

(5) On the application of either party if and when the husband and wife have lived separate and apart without cohabitation for a period of one year. A plea of res judicata or of recrimination with respect to any other provision of this section shall not be a bar to either party obtaining a divorce on this ground."

Thanks for your help. Just trying to make sure I do it all by the book.

[PurrSuede 0]

"Divorce Law

SECTION 20‑3‑10. Grounds for divorce.

No divorce from the bonds of matrimony shall be granted except upon one or more of the following grounds, to wit:

(1) Adultery;

(2) Desertion for a period of one year;

(3) Physical cruelty;

(4) Habitual drunkenness; provided, that this ground shall be construed to include habitual drunkenness caused by the use of any narcotic drug; or

(5) On the application of either party if and when the husband and wife have lived separate and apart without cohabitation for a period of one year. A plea of res judicata or of recrimination with respect to any other provision of this section shall not be a bar to either party obtaining a divorce on this ground."

Thanks for your help. Just trying to make sure I do it all by the book.

On this page:

http://www.uscis.gov/graphics/howdoi/remcond.htm

There's a reference as follows:

What if I Am in Divorce Proceedings, But Am Not Yet Divorced?

If you and your spouse are unable to apply to remove the conditions on your residence because of divorce or annulment proceedings, you may not apply for a waiver of the requirement to file a joint petition, based on the “good faith” exception. You may not file for the waiver until after your marriage has been terminated.

Please read the memo dated April 10, 2003 for more specific information.

The link to that memo is:

http://www.uscis.gov/graphics/lawsregs/han...aiver041003.pdf

At the bottom of that memo it says:

As such, an alien whose conditional resident status is approaching the 2-year anniversary of the grant of such status, but who is unable to file a joint petition to remove the conditions because divorce or annulment proceedings have commenced, may not apply for a waiver of the joint filing requirement based on the “good faith” exception. If an alien’s conditional resident status is terminated because he or she could not timely file a Form I-751, and he or she is placed in removal proceedings, then he or she may request a continuance from the immigration judge to allow for the finalization of the divorce or annulment proceedings. It is noted that the conditional resident whose status has been terminated should be issued a temporary I-551 during the pendency of his or her case before the immigration judge

Sounds like it all depends on how fast the USCIS is going to act on your case if you don't file the I-751, since you can't file it without the waiver... it sounds like worse case, you would have to ask an immigration judge for a continuance to allow the divorce to finalize and then you can file the I-751 with the waiver since you'd have the divorce decree.

I would suspect the local USCIS office is likely aware of that divorce law in the state of SC, I don't think SC is the only state in the US with that requirement, either...

-- Dan

[rcrawford 0]

On this page:

http://www.uscis.gov/graphics/howdoi/remcond.htm

There's a reference as follows:

What if I Am in Divorce Proceedings, But Am Not Yet Divorced?

If you and your spouse are unable to apply to remove the conditions on your residence because of divorce or annulment proceedings, you may not apply for a waiver of the requirement to file a joint petition, based on the “good faith” exception. You may not file for the waiver until after your marriage has been terminated.

Please read the memo dated April 10, 2003 for more specific information.

The link to that memo is:

http://www.uscis.gov/graphics/lawsregs/han...aiver041003.pdf

At the bottom of that memo it says:

As such, an alien whose conditional resident status is approaching the 2-year anniversary of the grant of such status, but who is unable to file a joint petition to remove the conditions because divorce or annulment proceedings have commenced, may not apply for a waiver of the joint filing requirement based on the “good faith” exception. If an alien’s conditional resident status is terminated because he or she could not timely file a Form I-751, and he or she is placed in removal proceedings, then he or she may request a continuance from the immigration judge to allow for the finalization of the divorce or annulment proceedings. It is noted that the conditional resident whose status has been terminated should be issued a temporary I-551 during the pendency of his or her case before the immigration judge

Sounds like it all depends on how fast the USCIS is going to act on your case if you don't file the I-751, since you can't file it without the waiver... it sounds like worse case, you would have to ask an immigration judge for a continuance to allow the divorce to finalize and then you can file the I-751 with the waiver since you'd have the divorce decree.

I would suspect the local USCIS office is likely aware of that divorce law in the state of SC, I don't think SC is the only state in the US with that requirement, either...

-- Dan

Thanks for the input, Dan. However, if I am officially divorced in May next year, I still have until September (when my green card expires) to apply for the I-751 waiver. So, unless divorce proceedings take 4 months to complete, should I not have enough time to apply for the waiver before my green card expires? But perhaps divorce proceedings do take that long. I'm afraid I don't know. It's a simple enough case. I suppose I can always ask for a continuance as you suggested.

[diadromous mermaid 36]

On this page:

http://www.uscis.gov/graphics/howdoi/remcond.htm

There's a reference as follows:

What if I Am in Divorce Proceedings, But Am Not Yet Divorced?

If you and your spouse are unable to apply to remove the conditions on your residence because of divorce or annulment proceedings, you may not apply for a waiver of the requirement to file a joint petition, based on the “good faith” exception. You may not file for the waiver until after your marriage has been terminated.

Please read the memo dated April 10, 2003 for more specific information.

The link to that memo is:

http://www.uscis.gov/graphics/lawsregs/han...aiver041003.pdf

At the bottom of that memo it says:

As such, an alien whose conditional resident status is approaching the 2-year anniversary of the grant of such status, but who is unable to file a joint petition to remove the conditions because divorce or annulment proceedings have commenced, may not apply for a waiver of the joint filing requirement based on the “good faith” exception. If an alien’s conditional resident status is terminated because he or she could not timely file a Form I-751, and he or she is placed in removal proceedings, then he or she may request a continuance from the immigration judge to allow for the finalization of the divorce or annulment proceedings. It is noted that the conditional resident whose status has been terminated should be issued a temporary I-551 during the pendency of his or her case before the immigration judge

Sounds like it all depends on how fast the USCIS is going to act on your case if you don't file the I-751, since you can't file it without the waiver... it sounds like worse case, you would have to ask an immigration judge for a continuance to allow the divorce to finalize and then you can file the I-751 with the waiver since you'd have the divorce decree.

I would suspect the local USCIS office is likely aware of that divorce law in the state of SC, I don't think SC is the only state in the US with that requirement, either...

-- Dan

Thanks for the input, Dan. However, if I am officially divorced in May next year, I still have until September (when my green card expires) to apply for the I-751 waiver. So, unless divorce proceedings take 4 months to complete, should I not have enough time to apply for the waiver before my green card expires? But perhaps divorce proceedings do take that long. I'm afraid I don't know. It's a simple enough case. I suppose I can always ask for a continuance as you suggested.

Might be worth ringing up a family lawyer in SC to enquire more about the mandated 12 month separation and how or what triggers its commencement.

On the application of either party if and when the husband and wife have lived separate and apart without cohabitation for a period of one year

.

If it's simply an honour system and not based upon any other causation, then perhaps it could be backdated to the date you and your wife separated four months ago. That would give you a bit more comfort room.

[japau 1]

Backdating documents? Oh how the pure, righteous and always correct have fallen. Suggesting...what...committing fraud in connection with a court filing that will be executed under penalty of perjury? On my! What kind of advice is that other than very bad advice?

Anyway, pinhead...if I were you, I wouldn't be taking advice from untrained "phantoms" over the internet who are apparently always (every day, constantly, and on every issue) ready to bet someone else's future on their own bad advice.

Your situation requires a good family and immigration lawyer: I really don't think there is any way around it. You are talking about interweaving two fairly intricate legal proceedings that contain their own sets of legal requirements and pitfalls, and wrapping each up in an overlapping period of, what did you say, four months or so? That doesn't leave a lot of room for any error. While you may be able to accomplish the marriage termination on your own, you really should get legal advice on the immigration portion. Also, in my experience, when parties file their own divorce proceedings without lawyers, courts are very circumspect and these cases are just going to take longer because the judge is not going to rush it along, but cross every t and dot every i. Whatever you decide to do, good luck!

Edited September 27, 2006 by japau

[diadromous mermaid 36]

Is there a reason that you are only enquiring about the waiver? Do you foresee the marriage terminating in divorce prior to the date when you'd have to file the I-751? As I see it, you have to contemplate the "what ifs". Right now, from what I gather, you are to file an I-751 by June 2007.

As far as my understanding of recent refinement of the procedures is concerned, implemented to cover odd situations like yours, there are a couple of clear procedures. If prior to June 2007 a divorce has occured, you'll need to have the decree prior to filing the waiver of form I-751. There's no way around that and the regulations state that an alien can't file a waiver without a divorce decree.

Because there are a number of situations that are not covered comprehensively in the INA, and prolonged adjudication times in past years created situations that were not anticipated, such the adjudication of I-751s if parties separate or divorce either before or during the pending period. Three separate Flashes were issued by NSC proposing procedure in these complex situations. The first in December 2004, a revision in March 2005 and then one in April 2005.

According to the directions in the most recent of those News Flashes, if you are still separated in June 2007, and your wife is still willing, you could file a joint I-751 at that time, prior to the expiry of your CGC.

Unlike the discussions that occured on here a day or so ago, filing a joint petition in this scenario involves disclosure that you are living separately (the form itself asks for the beneficiary's and USC's current address, and any former addresses for the beneficiary as well) so there's no way that this will be accomplished without immigration knowing the status of your marriage or who moved where. Attempting to pretend that the marriage is viable, and/or non-disclosure of your current whereabouts could be misrepresentation, and that *could* cause problems!

Naturally, if you file jointly while separated, one of you would also have had to file a Change of Address notification (an AR-11 from the alien, or if the US citizen spouse moved in order to separate an I-865 to change address for the sponsor).

After filing the joint petition, once a divorce is finalised prior to adjudication, you'd have to withdraw the joint petition and replace it with a waiver, prolonging the process for adjudication but still preserving your conditional status and the requisite privileges that confers.

Backdating documents? Oh how the pure, righteous and always correct have fallen. Suggesting...what...committing fraud in connection with a court filing that will be executed under penalty of perjury? On my! What kind of advice is that other than very bad advice?

Anyway, pinhead...if I were you, I wouldn't be taking advice from untrained "phantoms" over the internet who are apparently always (every day, constantly, and on every issue) ready to bet someone else's future on their own bad advice.

Your situation requires a good family and immigration lawyer: I really don't think there is any way around it. You are talking about interweaving two fairly intricate legal proceedings that contain their own sets of legal requirements and pitfalls, and wrapping each up in an overlapping period of, what did you say, four months or so? That doesn't leave a lot of room for any error. While you may be able to accomplish the marriage termination on your own, you really should get legal advice on the immigration portion. Also, in my experience, when parties file their own divorce proceedings without lawyers, courts are very circumspect and these cases are just going to take longer because the judge is not going to rush it along, but cross every t and dot every i. Whatever you decide to do, good luck!

I did not suggest anything of the sort! Or that documents should be 'backdated. CONTEXT, please! What I said, is that since the parties separated 4 months ago, he should confer with a family lawyer in his area to see what is the 'triggering event' and if it is only based on the representation of the parties, since he has already satisfied 4 months of the mandatory 12, could that not be established. Are you really that keen on an argument, that you have to contort other's words to create dispute for the sake of dispute?

[japau 1]

Your direct quote from your post:

If it's simply an honour system and not based upon any other causation, then perhaps it could be backdated to the date you and your wife separated four months ago. That would give you a bit more comfort room.

I guess that's a misunderstanding and bad act on my part...You obviously didn't "mean" backdate documents, even though you said, well, you did say "backdate"...no problem, my fault anyway, even though you said it...yes, I don't know what I am talking about...obviously...uh-huh...because the "always right" are simply and obviously....always right...

[diadromous mermaid 36]

Your direct quote from your post:

If it's simply an honour system and not based upon any other causation, then perhaps it could be backdated to the date you and your wife separated four months ago. That would give you a bit more comfort room.

I guess that's a misunderstanding and bad act on my part...You obviously didn't "mean" backdate documents, even though you said, well, you did say "backdate"...no problem, my fault anyway, even though you said it...yes, I don't know what I am talking about...obviously...uh-huh...because the "always right" are simply and obviously....always right...

It's really unnecessary to justify what I wrote, but let's just say I have a 'thing' about misrepresentation. Of me, of facts, of truth and of circumstances.

Pinhead pasted from SECTION 20‑3‑10 of his state divorce laws,

No divorce from the bonds of matrimony shall be granted except upon one or more of the following grounds, to wit...(5) On the application of either party if and when the husband and wife have lived separate and apart without cohabitation for a period of one year

My retort was that it might be worth ringing up a family lawyer in SC to enquire more about the mandated 12 month separation and how or what triggers its commencement. And in the event that it's commencement is nothing more than the parties own declaration that they have been living separately without cohabitation, rather than another triggering event, such as the filing of a certain document, petition or form then perhaps the commencement date could be backdated to the date of their actual separation.

Of course, I suppose once again you are taking issue over semantics, and my choice of the word backdate as opposed to another, such as made 'retroactive' or 'antedate', of which both I'd expect would be in your legal arsenal. It's a stretch to try to cast a negative complexion in my comments, although I see that in your interest of finding fault with my post, that inadvertently you confirmed the point I was making with you the other day.

Suggesting...what...committing fraud in connection with a court filing that will be executed under penalty of perjury

. So, couselor, I think we are both in agreement on that issue, that to falsify information on an application would carry some pretty dire consequences, eh?

Back to the instant case, and that of possibly being able to satisfy 4 months of pinhead's mandatory 12 month separation prior to divorce: My point was not to suggest falsification but rather of "making effective from an earlier date" if there is nothing more that is required to trigger the commencement of the separation than the parties beginning to cohabitate separately, which they did 4 months ago.

P.S. (I'm really curious, more than anything. Did you really set your alarm and awaken at 4:00am just to challenge something I had posted? )

[japau 1]

Please stop stalking me on line...you just can't "not" respond to every single thing I post: you are obsessed...try it once - try not to respond to this post...go out for a run or something...let's see if you can do it!

You just can't get away from this Republican-esque, Miss Debate, Jr. High School debate team "parse the statements" and mischaracterize them nonsense. My schedule is none of your business and, as usual, you over-emphasize your own importance - you are an irrelevancy to me.

Board members: As I stated previously, most of the 'opinionated types' like this one (with the 4000 posts with opinions on every conceivable subject, on which, of course, they are 'always right') are willing to bet anyone and everyone else's future on their own bad, untrained advice. I certainly wouldn't be following any of it...caveat emptor...

Edited September 28, 2006 by japau

[diadromous mermaid 36]

Please stop stalking me on line...you just can't "not" respond to every single thing I post: you are obsessed...try it once - try not to respond to this post...go out for a run or something...let's see if you can do it!

Oh, I get it. Interesting technique you're employing to leave your words out there, and hope they go uncontested. You comment on all that I say, twist and contort my words, and rip of the gratuitous insult and if I should deign to respond, then I am characterised as obsessive. Nice try!

You just can't get away from this Republican-esque, Miss Debate, Jr. High School debate team "parse the statements" and mischaracterize them nonsense. My schedule is none of your business and, as usual, you over-emphasize your own importance - you are an irrelevancy to me.

Glad to hear it. I suppose I can continue my participation on the board, without unnecessary interruptions and further attempts on your part to malign my character then?

Board members: As I stated previously, most of the 'opinionated types' like this one (with the 4000 posts with opinions on every conceivable subject, on which, of course, they are 'always right') are willing to bet anyone and everyone else's future on their own bad, untrained advice. I certainly wouldn't be following any of it...caveat emptor...

Make up your mind. Is it 3500, or 4000 or 6000 posts? And once and for all, I offer an opinion, and more often than not prefaced by a recommendation to seek qualified legal assistance, as is evident on this thread, for example. The only difference in your opinion and mine, is that I express my opinion in such a way that it comes off as an opinion and not as guidance or advice and I don't feel the compunction to place a disclaimer in my signature as a 'catch-all" insurance policy so that I can post anything and everything with abandon.

The only policy I feel necesary to employ is one of respect and humility . You might try it, sometime.

[meauxna 15]

However, if I am officially divorced in May next year, I still have until September (when my green card expires) to apply for the I-751 waiver. So, unless divorce proceedings take 4 months to complete, should I not have enough time to apply for the waiver before my green card expires?

The I-751 instruction is that it must be filed in the 90 days before it expires---nothing's said about it getting *decided* upon before the card expires.

It is totally natural for the card to expire---it happens to everyone. After you file I-751 you'll get a Notice in the post that extends your card for one year. As long as you've filed your application correctly, you WILL automatically be extended and your status does not expire until you are told so (denial letter?).

If you are divorced, you can file immediate via the waiver--you do not have to wait for that 90 day window.