For Jappau - separation issue.

[Moonliteem 0]

Jappau,

I am new here, but was reading a heated discussion regarding separation and filing of the 1-751. I felt you were unfairly bashed and the reason I say that is the Flash that was posted to back up another claim was incomplete.

The Flash from NCS, in addition to saying if you are separated while filing, also says "The NSC would then forward the file to the local district office to schedule an interview. The NSC did not insist on the filing of a new I-751; the joint petition could still be adjudicated as long as the marriage had not been terminated. But if the couple filed a joint petition and subsequently divorced, the NSC reminded the alien that he or she must submit a new I-751 under the good faith/waiver ground. The same procedure would presumably need to be followed if the alien started out filing under one waiver ground (e.g., battered spouse or extreme hardship) and then obtained a final divorce. If he or she wanted the waiver adjudicated under the relatively easy good faith/divorce standard, then the alien would need to file a new I-751 claiming that ground."

Please also read from the ILW articles written by a noted lawyer here http://www.ilw.com/articles/2005,0621-wheeler.shtm#bio which says, "Regrettably, the NSC memo went on to directly contradict the April 10, 2003 USCIS central office memo by advising conditional residents to file under the good faith/divorce waiver if they were merely separated at the time they needed to file an I-751. This inconsistency was partially remedied in a second memo dated March 30, 2005 (NSC Flash #18-2005) where the NSC stated that if the parties "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." But while conforming with the official policy prohibiting filing under good faith/divorce waiver until the divorce is final, it directly contradicted official policy allowing the filing of a joint petition if the parties are merely separated or have recently filed for divorce. To make matters worse, it ended the memo with the warning that "an alien's status may be terminated because they (sic) are unable to file a timely Form I-751, or they may be placed in removal proceedings." The implication was that conditional residents who are separated or in the process of divorcing at the end of their two-year conditional residency period are left without a legal remedy and are looking at possible deportation.

Expectations were running high that the third NSC memo (NSC Flash #19-2005) dated April 11, 2005, was finally going to get it right. The last bulleted paragraph restated current official policy: couples who are separated or have initiated divorce proceedings may still file a joint petition at the end of the conditional residency period. But for those conditional residents who cannot file a joint petition due to the U.S. citizen's failure to cooperate, the NSC indicated that the alien has only two options: (1) file a timely waiver based on being a battered spouse, or (2) file a good faith/divorce waiver – presumably late – once the divorce is final. The memo ends with the same warning that failure to file a timely I-751 will result in deportation proceedings. "

and...

"Failing marriages and good faith/divorce waiver. The hard cases are those where the parties are separated or not getting along. If the parties are still married, even though they may be living apart and contemplating divorce, they can still file a joint petition. The key is whether they are cooperating with each other. There is no requirement that it be a viable marriage at the time the I-751 is filed or adjudicated; the requirement is that the marriage not be terminated and that it was entered in good faith. Ask your client whether it is likely that the U.S. citizen spouse will sign the joint petition and show up for an interview in the future. If so, consider this as the first option."

My husband and I have been married 5 years in February. We gained our conditional residency 6 days before our 2 year anniversary. About 2 years 8 months into our marriage we separated but never divorced. I contacted a good lawyer and we filed jointly stating we were separted and have our interview this Tuesday. My lawyer assures me that the issue is THAT AT THE TIME YOU MARRIED it was for bona fide reasons, not whether you are happily married now.

I hope this helps as I feel you were unfairly bashed when really what you did was confirm the above.

Kindly,

Moonliteem

[diadromous mermaid 36]

Jappau,

I am new here, but was reading a heated discussion regarding separation and filing of the 1-751. I felt you were unfairly bashed and the reason I say that is the Flash that was posted to back up another claim was incomplete.

The Flash from NCS, in addition to saying if you are separated while filing, also says "The NSC would then forward the file to the local district office to schedule an interview. The NSC did not insist on the filing of a new I-751; the joint petition could still be adjudicated as long as the marriage had not been terminated. But if the couple filed a joint petition and subsequently divorced, the NSC reminded the alien that he or she must submit a new I-751 under the good faith/waiver ground. The same procedure would presumably need to be followed if the alien started out filing under one waiver ground (e.g., battered spouse or extreme hardship) and then obtained a final divorce. If he or she wanted the waiver adjudicated under the relatively easy good faith/divorce standard, then the alien would need to file a new I-751 claiming that ground."

Please also read from the ILW articles written by a noted lawyer here http://www.ilw.com/articles/2005,0621-wheeler.shtm#bio which says, "Regrettably, the NSC memo went on to directly contradict the April 10, 2003 USCIS central office memo by advising conditional residents to file under the good faith/divorce waiver if they were merely separated at the time they needed to file an I-751. This inconsistency was partially remedied in a second memo dated March 30, 2005 (NSC Flash #18-2005) where the NSC stated that if the parties "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." But while conforming with the official policy prohibiting filing under good faith/divorce waiver until the divorce is final, it directly contradicted official policy allowing the filing of a joint petition if the parties are merely separated or have recently filed for divorce. To make matters worse, it ended the memo with the warning that "an alien's status may be terminated because they (sic) are unable to file a timely Form I-751, or they may be placed in removal proceedings." The implication was that conditional residents who are separated or in the process of divorcing at the end of their two-year conditional residency period are left without a legal remedy and are looking at possible deportation.

Expectations were running high that the third NSC memo (NSC Flash #19-2005) dated April 11, 2005, was finally going to get it right. The last bulleted paragraph restated current official policy: couples who are separated or have initiated divorce proceedings may still file a joint petition at the end of the conditional residency period. But for those conditional residents who cannot file a joint petition due to the U.S. citizen's failure to cooperate, the NSC indicated that the alien has only two options: (1) file a timely waiver based on being a battered spouse, or (2) file a good faith/divorce waiver – presumably late – once the divorce is final. The memo ends with the same warning that failure to file a timely I-751 will result in deportation proceedings. "

and...

"Failing marriages and good faith/divorce waiver. The hard cases are those where the parties are separated or not getting along. If the parties are still married, even though they may be living apart and contemplating divorce, they can still file a joint petition. The key is whether they are cooperating with each other. There is no requirement that it be a viable marriage at the time the I-751 is filed or adjudicated; the requirement is that the marriage not be terminated and that it was entered in good faith. Ask your client whether it is likely that the U.S. citizen spouse will sign the joint petition and show up for an interview in the future. If so, consider this as the first option."

My husband and I have been married 5 years in February. We gained our conditional residency 6 days before our 2 year anniversary. About 2 years 8 months into our marriage we separated but never divorced. I contacted a good lawyer and we filed jointly stating we were separted and have our interview this Tuesday. My lawyer assures me that the issue is THAT AT THE TIME YOU MARRIED it was for bona fide reasons, not whether you are happily married now.

I hope this helps as I feel you were unfairly bashed when really what you did was confirm the above.

Kindly,

Moonliteem

Moonlitem,

Indeed, what Wheeler discusses is the guidance from NSC on the protocol of filing the I-751 in the event of separation and divorce. All of the information you provided above was introduced in the thread you are referring to.

In your case, you say you filed a joint petition, but in addition or accompanying that application you alerted the USCIS to the fact that you were separated. This is the crux of the discussion I was having with japau on the thread which was later closed. His recommendation was that the parties file a joint petition and not disclose that they were separated, as if USCIS would be non-the-wiser. Well, he posed it as a question "how would they know?". Naturally, if parties are separated one would have the responsibility of alerting USCIS of his/her new address (in the case of an alien, the AR-11, in the case of the US citizen petitioner, the I-865). There's no way around that, unless one wishes to violate reporting procedure.

[Moonliteem 0]

Ahh, thank you for clearing that up. I have been quite worried reading some boards, not just this one, where people tell you if you're separated you're screwed for want of a better word when that is not the case. We were in love, still are to some extent, but it just didn't work out and we didn't rush to divorce.

Thank you again, to both of you.

[japau 1]

I appreciate you clearing up the issue Moon - this is the exact point I was trying to make (which everyone seemed more intent on 'proving me wrong' than actually helping the original poster, but I digress). I never made any such recommendation, but was stating a fact: how would they know? I also leaned very heavily on the analysis on which your very astute attorney elucidated quite well. This was my other entire point: good legal representation trumps "untrained guessers" on internet chat boards willing to bet your immigration status on their untrained, usually mistaken, advice. I wish people on this board would let other people speak for themselves, and not mischaracterize what other people say or write, or said or wrote. Miss Debate (a) sure can backpedal; and (2) definitely has no shame. J

[Flames9_RN 358]

Japau, I dont think that ur posts have been that wrong, but maybe your delivery is a touch harsh. I dont believe one should have to write"in my opionion, or my experience" in every post. One shouldn't have to babysit the readers. One only has to read Visa journeys Terms of service (TOS) on the main page to realize this site doesnt offer "legal" advice. If a person can't be bothered to spend a few minutes to read the TOS, well that is there own undoing. VJ is a very good reference, but its not the written law. Cheers

[diadromous mermaid 36]

I appreciate you clearing up the issue Moon - this is the exact point I was trying to make (which everyone seemed more intent on 'proving me wrong' than actually helping the original poster, but I digress). I never made any such recommendation, but was stating a fact: how would they know? I also leaned very heavily on the analysis on which your very astute attorney elucidated quite well. This was my other entire point: good legal representation trumps "untrained guessers" on internet chat boards willing to bet your immigration status on their untrained, usually mistaken, advice. I wish people on this board would let other people speak for themselves, and not mischaracterize what other people say or write, or said or wrote. Miss Debate (a) sure can backpedal; and (2) definitely has no shame. J

Well, I must say, your recall is a little foggy. Perhaps it requires a little memory jog

You said,

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?

to which I asked

Hmm. If you believe that the 'opinion' you offered for the couple to feign that they are still in a viable marriage is completely above board, in the legal sense, why would you also write...."no one is likely to find out - how could they?" Am I to believe that if someone *did* find out, the 'opinion' you've offered might not be good counsel?

and further remarked

That said, if both parties entered the marriage with bona fide intent, then to feign a viable marriage at a point in the process where there are clear options available to the alien to remove conditions from her permanent residency alone, would be misrepresentation, which, if material could have precarious implications on her future stay in the USA. Not wise counsel, in my opinion!

Note that no one suggested that a couple that are separated could NOT file jointly, but that disclosing the separation was proper (both on the I-751, as pertinent in part 3 and the recommended explanatory statement for the existence of prior addresses and the corresponding change of address forms that would be required after one party moves to another abode). As japau can see, if full disclosure were made by the alien and the US citizen on a jointly filed I-751 when they are separated, there is no way that SUCIS could not know their estranged marital status and yet his post advice suggested otherwise.

There were other comments through that thread which also appeared a little dodgy. One in particular comes to mind..

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...

Nonetheless, the whole matter would not have escalated to the proportion that it did had japau simply quoted the procedures and not intimate that the couple try to cover up their separation, in the hope that "no one would find out".

I guess, for me it boils down to one method of filing being open, straightforward and with full disclosure, the other possibly hedging on the fact that USCIS might not uncover the truth. That's all!

Edited October 3, 2006 by diadromous mermaid

[japau 1]

I don't need your Debating Miss memory jogs - I need for you to stop stalking me over the internet. Don't you have a job or something, or do you just post meaningless arguments on the internet all day? You have once again, completely destroyed the context and tenor and meaning of the entire exchange which makes you a Republican for sure, or worse...I also seem to remember you advising someone to backdate a document to two months prior than it being executed, but of course that was ok...because it was you...Ms. Straightforward and Honest...what a joke...

Edited October 3, 2006 by japau

[diadromous mermaid 36]

I don't need your Debating Miss memory jogs - I need for you to stop stalking me over the internet. Don't you have a job or something, or do you just post meaningless arguments on the internet all day? You have once again, completely destroyed the context and tenor and meaning of the entire exchange which makes you a Republican for sure, or worse...I also seem to remember you advising someone to backdate a document to two months prior than it being executed, but of course that was ok...because it was you...Ms. Straightforward and Honest...what a joke...

If you wouldn't contradict yourself then there'd be no further need for me to post. You just can't help yourself, can you? It seems to be becoming a habit...

I wish people on this board would let other people speak for themselves, and not mischaracterize what other people say or write, or said or wrote.

Another case of contorting reality, I see. This is getting most irritating............what's this another case of

if you don't like "this" truth, invent another?

Rather than run the risk of your ire and another whipping for purportedly "parsing" text, I'll simply paste a link to where I demonstrated that you had once again misrepresented my words...and no I didn't suggest anyone 'backdate' anything, the point made in that particular instance was to 'enquire with an attorney to see if the date of eparation could be made retroactive to the date the couple separated"

http://www.visajourney.com/forums/index.ph...mp;#entry475403

[Kathryn41 3,205]

japau wrote: I need for you to stop stalking me over the internet. "

Actually, if you review the various threads where you and D. Mermaid are posting, except for one where she objected to your advice to hide the truth from immigration, your posts always follow D. Mermaid's . . . if someone is doing some stalking, it sure doesn't look like it is D. Mermaid.

[japau 1]

Actually, this is what you wrote: I don't see anything in there about "ask your lawyer" but this would be par for the course for you...mischaracterization and revisionist history...

"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."

[knowledge 0]

Japau, I dont think that ur posts have been that wrong, but maybe your delivery is a touch harsh. I dont believe one should have to write"in my opionion, or my experience" in every post. One shouldn't have to babysit the readers. One only has to read Visa journeys Terms of service (TOS) on the main page to realize this site doesnt offer "legal" advice. If a person can't be bothered to spend a few minutes to read the TOS, well that is there own undoing. VJ is a very good reference, but its not the written law. Cheers

Hm! let's see!!! and, if I may, I think that when somebody showsoff his/her profession, some kind of integrity has to be shown, wherever that person is, virtual or professional or even more maybe than ever, personal life. Jaupau's has not been the case on here for quite time, and, again, on many levels. And, not only he does not respect the law (at least on here, in theory), but in addition, he does not stop with that same "song" and breaked the genuine and informative course of a few threads.