Filing for removal of conditions after leaving a cheating partner

[kiwi25 3]

Hey guys,

I've posted about it before in these forums but I married in July 2011 and found out in March 2012 (after my AOS was approved) that my (American citizen) wife was having an affair. It was very sad but I tried to do what was best and transferred jobs to a new city and tried to start a new life.

Although my GC does not expire until November 2013, I am looking at filing for removal of conditions now. Can anyone give me some advice as to which steps to take first?

-Do I still need to wait until 90 days before my GC expires to file the I-751? Or can I file earlier?

-Should I move to file for divorce before dealing with the I-751?

-What is my biggest obstacle to remaining in the USA?

This website is incredible for information but I am just looking to take the correct first step as I know this will be a long and difficult process.

Thank you to anyone kind enough to offer advice, you guys are awesome.

-Matt

[SF83 1]

You can't file to remove conditions earlier than the 90 days that precedes the expiration of your Green Card. Period. So you can file in August.

As for the rest of the questions, I would consult with an experienced Immigration Attorney. We are not qualified to advise you on such matters.

http://www.uscis.gov/files/form/i-751instr.pdf

The above form gives you instructions on how and when to file.

Edited March 7, 2013 by Jinxxabelle

[kiwi25 3]

Thanks for the reply Jinxxabelle.

From the instructions link you provided, under WHEN SHOULD I FILE FORM I-751 it states that if "filing with a request that the joint filing requirement be waived; You may file this petition at any time after you are granted conditional resident status" so it appears (to me at least) as if I can file the I-751 earlier than is usual for happy successfully married folk.

I'm being careful to not ask legal advice here, rather I'm looking for someone who has filed in a position similar to mine and can offer some advice. I wish I could afford an immigration lawyer, but I feel that with the help of this community I can make enough sense of this to file on my own. That's what I'm hoping anyway..

[Done--Really 331]

When all else fails, just follow the directions--REALLY !!!

[Audy_Rob 26]

"I'm being careful to not ask legal advice here..." Good for you.

According to the I-751 instructions, your situation does not fall under the category "waiver from filing jointly" unless;

a) You have been a battered spouse or subjected to extreme cruelty OR

b) You can prove Exceptional hardship if you were denied ROC and returned to your home country.

However, if the marriage was terminated by divorce or annulment, then you would be free to file an I-751 petition asking that the requirement to file jointly be withdrawn. That would seem to be the best way to go. This is not legal advice nor a suggestion to divorce. Simply interpreting options based on the I-751 instructions.

Sorry about your situation.

Good luck.

[Brother Hesekiel 2,235]

Kiwi,

there are only 2 ways to adjudicate an RoC petition:

1) jointly filed, if happily married and living together, or

2) singularly filed, if divorced.

You do not fall under any of those. In plain English, file for divorce NOW or you will experience a truck load of emotional pain when the time comes your Green Card expires.

For a short time now, you can submit your RoC package even if you are not divorced yet, but it cannot be adjudicated. You'll receive an RFE for the missing divorce decree later and if your divorce then still drags out beyond about the coming 88 days, the USCIS will automatically seek to remove you from the United States. You'd be having a date with an immigration judge, where your silly expensive attorney will ask the judge to hold his horses until your divorce is final. Usually the judge plays along. Then, once your divorce is final, your attorney will mail the divorce decree to the USCIS and they can start working on your I-751 again. Not fun this way.

[kiwi25 3]

Thank you for clearing this up, I really appreciate your help!

It makes sense to me now. Time to file for divorce.

[VanessaTony 3,567]

Thank you for clearing this up, I really appreciate your help!

It makes sense to me now. Time to file for divorce.

Just to clarify because honestly most of these posts are confusing...

- When people file jointly, the spouse needs to go to the interview and talk about their genuine relationship. When you file for this it's in the 90 day window before your card expires;

- When people are going to need to file with the divorce waiver you MUST file as soon as your divorce is final OR during the 90 day window, whichever comes first. If you file before the divorce is final (during the 90 day window) you will send the packet without the decree, get an RFE for the decree and if you aren't divorced in time your ROC is denied, you go before an immigration judge who orders USCIS to wait until the divorce is final before adjudicating your petition.

So as you realised, you need to divorce asap. That said, there are some residency requirements in some states to file for divorce, as in you need to have lived in some states for a certain period before you can file (this is because the laws differ in some states and they don't want you visiting another state with laws you prefer to avoid following the laws of your state).

[kiwi25 3]

Thanks, fortunately we have both been living in Texas since we married in 2011. Considering there are no children or assets this should be fairly straightforward. Am filling out paperwork online as we speak.