Divorce while I-751 pending

[tuckin14 58]

Here briefly is the timeline:

January 2011 - married, spouse living in Canada.

November 2011 - Green card granted, spouse still living in Canada

August 2013 - Spouse moves to USA and immediately asks me to move out

September 2013- I-751 filed jointly a few days before I actually move out. Is filed with no supporting evidence. Notice that we never actually lived together except for these few weeks, and we never combined our finances in any way.

As of July 2014 neither of us has filed for divorce. My wife has recently started asking me for documents that make me believe she has either received an RFE or consulted an attorney who has said "Oh we have to get some information together."

Here is my concern/issue. I have seen other posts that indicate that if a divorce is pending, either USCIS or an immigration judge will stay the ROC/removal until the divorce is final to allow the CPR to re-file with a waiver. We are 9 months into the process and I think my wife's ROC case will be challenging at best.

Also note that at present my wife does not have grounds for divorce but I probably do. Don't bother asking exactly why, but under the laws of the state she lives in and we last did, that's the case.

So here is my question - if she sees a situation where she is unlikely to be approved for ROC, can she file for divorce and thereby stall the whole proceeding and stay in the USA for quite a while longer? It seems unlikely that USCIS would inquire to the merits of her divorce petition. But in theory it could easily take her 15-18 months to get divorced, then if she files all over another 6+ months until the case comes up. Would USCIS or the immigration courts let her stay here that long?

Also - is there a distinction between who approves it? If USCIS refuses a continuance but the immigration judge defers removal, does that mean that for that whole time she is here without status? I think she would not stay in the USA if she couldn't work. And if she goes back to Canada and resumes her job there (from which she is presently on leave of absence) it seems she might lose her green card not even on the basis of ROC but on the basis of moving permanently to another country.

[Hypnos 6,579]

Since you filed a joint application then you are equally as entitled to know its current status. If you know or can find out the case number then plug it into https://egov.uscis.gov/cris/Dashboard/CaseStatus.do and see what's happening with it.

If you sent it in with no supporting documentation then the chances of it being approved are zero. An RFE asking for proof of a bona fide marriage has either already been issued or is about to be issued.

It's difficult to advise you further without knowing what you want. Do you want to stay married and try to work it out? Do you want to get divorced? Do you want to help your wife remain in the US?

[tuckin14 58]

It seems odd but USCIS tells me I have no right to know the status.

I had a positive relationship with my wife until about 3 weeks ago, and to my knowledge no RFE had been issued. At that point I'm fairly sure she consulted an attorney, he may have pulled the file and found there was nothing submitted, and started working on pulling together evidence. My wife has asked me for a list of the trips she took to the USA before she moved here, and photos of us together. There is no question that we had a relationship, but it was devoid of most of the things USCIS looks for.

Reconciliation is impossible. Divorce will happen eventually. I want to know the implications of certain things on her immigration case. I will say plainly that I feel used, that I waited patiently in a long distance relationship for 4 years (1 1/2 before marriage and 2 1/2 after) to move in with her, and that when she told me to move out literally the day she moved here and spent the 6 weeks before I actually did move out mostly saying "I want to start dating" I am none too happy.

[Hypnos 6,579]

USCIS are wrong. If it's a joint application then you are the joint petitioner and just as much able to see the status as your wife is.

In your position I would withdraw your support of the joint application. You are perfectly able to do this, and plenty of people around here have done so. You would write up a formal letter, giving your wife's alien number, application number (if you know it), etc. and stating that you wish to withdraw the joint filing of the I-751. You would send a copy of this to where the application is currently pending (likely a service centre), and you should also make an Infopass appointment and hand a copy to an immigration officer there, too. This double-barrelled approach ensures that you are protected.

After you did this, USCIS would likely contact your wife advising her of your actions, and asking if she would like to change to a waiver filing, or they may outright deny it. Even if they did deny it, she'd be able to make a fresh filing, this time requesting a waiver of the joint filing requirement due to divorce, although she'd have to pay the fee again. If she filed with a divorce waiver request, her I-751 could not be approved until you were actually divorced and she had a copy of the divorce decree to show them. If she did not enclose the divorce decree with her new I-751 (or they let her switch to a waiver filing mid-stream) she would be RFE'd for it, and if she didn't (or couldn't) respond to the RFE with a copy of it before the deadline (usually 87 days) her I-751 would be denied.

She would immediately be out of status, deportable, and not be authorised to work in the US. She would receive a Notice To Appear in immigration court where she could explain the situation to the immigration judge, who would likely grant her a continuance until the divorce was final and she was able to show him the divorce decree. At that point she could attempt to resurrect her denied RoC, and if he was satisfied that your marriage was entered into in good faith then the judge may approve her RoC himself or direct USCIS to adjudicate it.

I understand your unhappiness.

Withdrawing your half of the joint petition is the way to go here, I think.

Edited July 4, 2014 by Hypnos

[tuckin14 58]

As of now, based on what I've been told, my wife does not have grounds for divorce but I do. Neither of us has filed.

So let's say I withdraw the joint I-751. If I understand correctly, USCIS's hands are tied. They have no choice but to deny the withdrawn filing and so my wife is immediately out of status. Further, USCIS cannot accept a waiver filing until the divorce is final. There is no way that USCIS can grant a continuance and leave her in status?

However when she goes before the IJ, he can allow her to physically remain in the USA if she convinces him that she will be divorced and able to refile? But how long will he grant for that? Would he grant her over a year? Does this mean that she can remain in the USA but cannot work, renew a drivers license, etc? Not being able to work would be a big big deal to her, although she is not currently working. (She is a schoolteacher and will return to work in mid-August.)

If she voluntarily leaves in this time, can she return? Suppose she returns to Canada and takes a job there, would this prejudice her case?

At the end of all this, are we right back where we started - namely that she must show that her marriage to me was entered in good faith? There is no way at any point that she could divorce, remarry, and say "Oh, just forget all that other stuff, forget that marriage, let's just look at my new one." She could not, for example, surrender her current green card and apply again based on a new marriage.

In fact, I had read somewhere that if denied ROC based on a marriage USCIS considers fradulent, you can never get another green card for any reason. Is this true?

Given the facts I've explained, what is the likelihood of an interview that I would be required to appear at? Is it true that if I don't appear it's an automatic denial?

There is no question that we had a "relationship." We spent every other weekend together, traveled together, they don't have to put us in separate rooms and ask "What are your spouse's favorite foods? What are their siblings' names?" Will they interview us together and ask things like "What joint bank accounts do you have? When did you have joint leases?"

She has an attorney. If I am interviewed, is it my perrogative to exclude the attorney when I'm being interviewed? I assume it is.

I do have mixed feelings about all this. As a matter of middling importance, I am on her health insurance, saving me $9000 a year. But we will get divorced eventually and that will go away anyhow.

[Hypnos 6,579]

Correct. USCIS cannot grant your wife any kind of stay or continuance, they can only adjudicate the petition based on the information in front of them. If it's insufficient (and you said you sent nothing else so it will be) then they can RFE you for it, but if the response to the RFE is itself deficient (or there is no reply within the deadline) then it's an automatic denial.

I'm unsure as to how long an IJ would grant her for a continuance. Her lawyer may be able to request a certain amount of time (probably a few months) or the judge may give her a rolling period of a month or two which he keeps renewing. She would still be out of status, without employment authorisation, and would be unlikely to obtain a driver's licence or any kind of identification card.

If she left voluntarily at this point then her status would be permanently terminated. As a Canadian she may be able to return just as a nonimmigrant Canadian visitor, it would depend on exactly how long she was deemed to be out of status for and the exact nature of what occurred in immigration court.

As you surmise, even once she has the divorce decree it's not a panacea to a free unconditional green card. Your wife would still need to demonstrate that she entered into the marriage in good faith, and especially so given the questionable timeline (that she asked you to move out so quickly after entering; USCIS may see that as evidence of using you to obtain a green card; you could even make that allegation in your I-751 withdrawal letter if you wished).

I don't believe she could just remarry someone else and then file for adjustment based on that new marriage. Someone did that here recently and wound up getting denied. If she left, returned as a nonimmigrant then got married, she may be able to do so.

If USCIS wind up denying her I-751 and believe she entered into the marriage solely to obtain a green card, it's going to make it extremely difficult to her to obtain any kind of immigration benefit in the future. I think fraud is a lifetime bar from the US, but they would usually need to have clear and convincing proof that she did this, and not just suspicions. More likely I think they would just deny the I-751 without prejudice.

Given the facts as you have stated, I'd say an joint interview for you both is a strong likelihood. It will depend on how exactly she responds to the RFE. I don't believe they deny an I-751 without at least an interview, so even if she submits minimal proof in the RFE they would probably still schedule a joint interview for you both. If you failed to appear at it then that would likely lead to a denial. She (or her attorney) might be able to talk their way into a reschedule and they'd then pressure you to appear at it. If you continued to not appear then I believe she could request a change into a waiver filing, provided she did so before USCIS officially denied it.

It's a rough situation. You may want to consider having some consultations with immigration attorneys yourself, both to verify what I've said (obviously IANAL) and see what they recommend.

Edited July 4, 2014 by Hypnos

[kehills 217]

As noted in your other thread, it's not really clear what your goal is here?

Also, what do you mean your wife doesn't have grounds for a divorce? All states now allow no-fault divorces. She doesn't need "grounds" other than "I no longer wish to be married to this man."

[flora01 37]

It seems odd but USCIS tells me I have no right to know the status.

I had a positive relationship with my wife until about 3 weeks ago, and to my knowledge no RFE had been issued. At that point I'm fairly sure she consulted an attorney, he may have pulled the file and found there was nothing submitted, and started working on pulling together evidence. My wife has asked me for a list of the trips she took to the USA before she moved here, and photos of us together. There is no question that we had a relationship, but it was devoid of most of the things USCIS looks for.

Reconciliation is impossible. Divorce will happen eventually. I want to know the implications of certain things on her immigration case. I will say plainly that I feel used, that I waited patiently in a long distance relationship for 4 years (1 1/2 before marriage and 2 1/2 after) to move in with her, and that when she told me to move out literally the day she moved here and spent the 6 weeks before I actually did move out mostly saying "I want to start dating" I am none too happy.

Looking at all of your stories from all threads, the conclusion is

1.A woman unwillingly marries you and moves to this country 2 months before filing I751 just for a green card.

2.Her intentions are clear as soon as she moves here. She asks you to leave.

3.You already know that marriage can't be worked out and divorce is inevitable.

4.You want to remain married to her just for health insurance which you need urgently. After knowing that she

never loved you, never tried to live with you and not willing to work out this relationship you are still worried about her status and keep on asking different scenario questions about I751.

That is why you still had a positive relationship with her until about 3 weeks ago (are you serious).

Either you are not telling the other half of the story or its just helping someone for money. You both know there is no relationship going on, it's just a deal for money which you did with her.

Thats why you are too concerned about her status that you think about it day and night.

Edited July 5, 2014 by flora01

[tuckin14 58]

Regarding grounds for divorce, just on the off chance that she happens to surf the net and find this thread, I don't want to expose certain legal facts.

However, yes you do need grounds. In Maryland these include:

Consensual separation for one year

Non-consensual separation for two years

Adultery

Extreme cruelty

Vicious treatment

So let's say hypothetically that we separated on September 15, 2013. If the separation was mutual, she would have grounds as of September 15, 2014. If it was not mutual, she would have grounds as of September 15, 2015. If either of us could show that the other engaged in any of the last three acts, that would be immediate grounds.

Maryland also requires proof. For example, it is not enough for one spouse to say "My wife cheated with Joe" and her to say "Yes, I cheated with Joe." Courts may construe that the couple is conspiring to evade the required waiting period. However, if you have proof that Joe went into the wife's apartment at 9PM and was still there at midnight, that's good enough. You even have to show that you actually separated on the date you did, with some kind of evidence.

I have indeed consulted with more than one attorney and never seem to get the same answer. There doesn't seem to be a body of case law. If you want to find out, for example, what the permissible grounds are to search someone's computer, you can find appealate court decisions on the topic. But there doesn't seem to be any such thing for immigration cases. There are a few setting out general principles, like the case from the 1940's that ruled that a mere marriage license isn't enough.

As noted in my other thread, there is no denying we had a relationship. My wife has asked for,and I've given her, a list of the 50 or so trips she made to the USA between the date of marriage and permanent emigration, and photographs of us together on a number of trips. The substantive question is if there is a difference between a "marriage" and a "boyfriend/girlfriend relationship with a marriage license." That's really my biggest question.

My goal is to ascertain the exact implications of various actions I could take, including withdrawing the I-751, refusing to attend an interview, and initiating a divorce. I'm not sure which "direction" I want to go - making things easier for her, or harder.

[tuckin14 58]

Looking at all of your stories from all threads, the conclusion is

1.A woman unwillingly marries you and moves to this country 2 months before filing I751 just for a green card.

2.Her intentions are clear as soon as she moves here. She asks you to leave.

3.You already know that marriage can't be worked out and divorce is inevitable.

4.You want to remain married to her just for health insurance which you need urgently. After knowing that she

never loved you, never tried to live with you and not willing to work out this relationship you are still worried about her status and keep on asking different scenario questions about I751.

That is why you still had a positive relationship with her until about 3 weeks ago (are you serious).

Either you are not telling the other half of the story or its just helping someone for money. You both know there is no relationship going on, it's just a deal for money which you did with her.

Thats why you are too concerned about her status that you think about it day and night.

Here is the "story."

I pursued her for 2 years to get her to marry me, and 2 1/2 years more to get her to actually move to the USA. Yes there was money involved, I spent well over $100,000 on travel, presents, financial help for her. She began to move to the USA when I took a job overseas, and the job was terminated right around the time she moved. When I got home she said she "couldn't live with an unemployed guy." I tried for 9 months to get us back together, even while she was meeting other men on a dating site. About 6 weeks ago she met someone who really liked her and expected her to spend all her free time with him. She took a trip to Vegas with me that had been planned, but now her only communications with me are asking for documents for her I-751 and accusing me of not giving her all of them.

I don't "desperately need" health insurance but not having to pay $750 a month is quite a convenience.

I'm deeply conflicted. Sometimes I want to see that she gains no benefit from the way she treated me; sometimes I want to be "bigger" than that.

If you had lost your job, your home, and your spouse in the space of a few months (and then just for good measure your mother was diagnosed with terminal cancer) you might find yourself obsessing about certain things too.

There was definitely a relationship. It's just not clear how USCIS will view it.

[kehills 217]

Your information about Maryland divorce laws is incorrect. No-fault divorce in Maryland now requires parties to be living apart for one year. That's it. The information you list is for a fault divorce, which she does not need to pursue in approximately one month.

[tuckin14 58]

Your information about Maryland divorce laws is incorrect. No-fault divorce in Maryland now requires parties to be living apart for one year. That's it. The information you list is for a fault divorce, which she does not need to pursue in approximately one month.

I replied privately to you by email. The clue to your post is contained elsewhere in this thread, but I don't want to get into a public debate on state divorce laws.

[kehills 217]

No, I was aware of what you were alluding to. And they don't care, because it comes down to he says, she says. So what they look at is the concrete: when were houses and finances separated.

The idea of a no fault divorce is to shorten the process, which is why they use concrete markers rather than tenuous.

If you want to divorce her, let it go. If you don't want to support her i-751, the best thing you can do is divorce her. Because every post you make, every single thing that makes it out like you are fighting for the relationship, is confirmation that you were married and in a valid relationship and helps support her petition.

Your choice. But no matter how many scenarios you post here, you're not going to hear anything different than what you've already heard.