Divorce decree after the window for filing closes

[galephys 12]

Here is what I have:

I am filing I-751 waiver, window opened September 6, will close December 6.

State laws require 1 year of separation before the hearing for the divorce, that's October 20.

I need equitable distribution hearing, and it requires a pre-hearing.

Possible dates are October 16. November 6 and November 13 latest, whatever the other attorney will choose.

I have to fly out of the country over Christmas for family-related reasons, and it absolutely has to be done, can't be rescheduled.

So... If I send the package in without the divorce decree, will I still get a letter, extending my GC? Will I still get a bio appointment before the divorce is finalized and missing documents are sent?

If I mail all together, with the decree, when can I expect my letter of extension? (Vermont)

If I am in the middle of the divorce, which name do I use on the package? I want my maiden name back and I will change it ASAP after the divorce, can I file my I-751 under the maiden name? How do I go about it? All documents but a national passport are under the married name, but that will be changed ASAP.

Thanks!

Edited September 27, 2012 by galephys

[TracyTN 237]

I personally would not risk your December travel by hoping that you'll hear back from USCIS before then. Trying to predict how long anything will take with USCIS is troublesome at best. I would file soon-ish with the waiver and no decree. The extension letter is sent based on having the correct fee and form filed - the other details of your case will be looked at afterwards, so you should get the extension letter relatively quickly (again, hard to pinpoint with USCIS).

You will eventually be sent an RFE for the divorce decreen and be given 87 days in which to get it back to them. Sounds like that won't be an issue for you if you'll be in court in November. It may take them that long to get around to looking at your entire package anyway.

[galephys 12]

I would file soon-ish with the waiver and no decree.

Waiver based on a divorce?

FAQ section says if I'm in the middle of the divorce, but it's not finalized I can't file the waiver:

Q: The deadline for filing to remove conditions is approaching, but I am in divorce proceedings. The divorce will likely not be final before the deadline. What should I do?

A: The NSC Flash #19-2005 stipulates that the petitioner and beneficiary are still eligible to file a joint petition if the petitioner is willing to sign the petition. If the petitioner is not willing to sign a joint petition, the beneficiary is not eligible to file a petition requesting a waiver of the joint filing requirement due to divorce until the divorce is final UNLESS abuse is the basis for such a filing.

He won't sign a thing.

You're saying make it look like I filed as I am already divorced, just forgot to put the decree in the package? I am writing a cover letter with a description of a package, should I mention a decree there?

[TracyTN 237]

No, you don't file making it 'look' like you're divorced when you aren't. Never present yourself to USCIS in any manner other than what is actually true. What I meant was when applications such as yours are eventually approved, they're technically done so under a 'waiver' since you did not adjust status with the original K1 petitioner. Sorry for any confusion.

This has been done many times and with success, and is based on the guidance outlined below.

http://www.visajourney.com/forums/topic/220094-divorce-before-removal-of-conditions-on-permanent-resident-status/page__p__3360213#entry3360213

Send the I 751 form in along with proof that your marriage was entered in good faith as indicated on the I 751 instructions. If you have any filing documents proving that your divorce is in process, send those as well. Once they get around to adjudicating your application, they will notice the missing final divorce decree and send you the RFE for it which I mentioned in the previous post. You'll have 87 days to get that form back to them and they will start processing your application again. This is done to accommodate cases such as yours where you must file the I 751 to maintain your legal status (and receive the extension letter), but you have not yet received the final divorce decree.

If you have any other questions, I suggest making an Infopass appointment at your local office.

[galephys 12]

ahhh, I see now! Thank you!!!

Can I mail them the decree without RFE? I'll be done with it before they get around to look at my case... no need to make it longer than it is already.

[TracyTN 237]

There is no guarantee that the document you send will ever 'meet up' with your case. If you enclose it with an RFE, they have an actual way to track it all.

If you really want to do that, you'd be better off taking it with you to an Infopass appointment and letting them record it that way (still retaining a copy for yourself). Otherwise hold on to it and wait for the RFE.

[VanessaTony 3,567]

Waiver based on a divorce?

FAQ section says if I'm in the middle of the divorce, but it's not finalized I can't file the waiver:

Q: The deadline for filing to remove conditions is approaching, but I am in divorce proceedings. The divorce will likely not be final before the deadline. What should I do?

A: The NSC Flash #19-2005 stipulates that the petitioner and beneficiary are still eligible to file a joint petition if the petitioner is willing to sign the petition. If the petitioner is not willing to sign a joint petition, the beneficiary is not eligible to file a petition requesting a waiver of the joint filing requirement due to divorce until the divorce is final UNLESS abuse is the basis for such a filing.

He won't sign a thing.

You're saying make it look like I filed as I am already divorced, just forgot to put the decree in the package? I am writing a cover letter with a description of a package, should I mention a decree there?

No no.

It is possible to file BEFORE the 90 days if you are already divorced, in fact you must file as soon as the divorce is final.

But for people who are already in the 90 days who aren't divorced yet (but are planning to be or should be soon enough) they still MUST file in the 90 days, regardless of whether the divorce is final yet. They file with the divorce waiver but obviously don't have the decree yet. They reply to the RFE when they get the decree.