Removal of Conditions Filed Jointly after Divorce?

[southcoast 27]

File it when you have the evidence required. They always take a close look at marriages terminated in the first two years. be prepared with as much documentation as you can muster. I would also consider bringing in my ex with me to the interview. If you two obtain any counseling as part of your continued work on the marriage then bring the treatment notes. I would bring an affidavit from his mother as to the legitimacy of the marriage. For obvious reasons these types of affidavits carry a lot of wweight. You can certainly not file a joint petition, but his assistance and support will be helpful.

[onye uwaoma 131]

It has already been established that she has up until the expiration of the card to file for ROC. The fact that her divorce is final doesn't automatically cancel her status. She is still a conditional LPR until the date of the expiration on her card. As I advised before, she can file ROC at any time after her divorce is final and before her status expires. I also explained that I wouldn't wait until the very last minute to file the petition either.

she does not have up until the 90 day window to file as it should have been if she was still married. if uscis know about the divorce and she haven't filed to roc they can commence deportation process against her. she must file immediately upon final termination of the marriage or anywhere before the final decree is obtained. to be forewarned is to beforearmed. Don't mislead this lady please.........

Edited July 28, 2014 by onye uwaoma

[onye uwaoma 131]

The window opens immediately when the divorce becomes final. It's a good idea to apply, but it's not compulsory.

As for filing with a removal order entered, I believe it's possible, but as you say it would be a bad idea to let it go that far.

uscis doesn't know about the divorce most times as that is one grey area of information sharing. it is within their right to commence removal proceeding upon termination of marriage which in itself terminates conditional green card status instantly. the only way to avoid this risk is to file immediately... again, the status as a conditional green card terminates immediately upon final divorce... the next second after the divorce, you have no marriage upon which to tie condition. why wait a minute to file?

Edited July 28, 2014 by onye uwaoma

[Hypnos 6,576]

USCIS does not have the resources to go and speculatively check each of their CPRs to see if they are still married before the two year conditional green card expires, so the risk them initiating removal proceedings in that circumstance is essentially zero. That's why the two year cutoff exists, so that they don't have to go and do that, and to make CPRs have to apply to remove their conditional status.

Edited July 28, 2014 by Hypnos

[Ian H. 207]

There is nothing that says that if USCIS finds out about the divorce, that they would commence removal proceedings. Also there is a section in the code that says that she may file only up to when their is a final order of removal, deportation or exclusion. It seems that after that, a person cannot file for ROC.

§ Sec. 216.5 Waiver of requirement to file joint petition to remove conditions by alien spouse.

(a) General . (1) A conditional resident alien who is unable to meet the requirements under section 216 of the Act for a joint petition for removal of the conditional basis of his or her permanent resident status may file Form I-751, Petition to Remove the Conditions on Residence, if the alien requests a waiver, was not at fault in failing to meet the filing requirement, and the conditional resident alien is able to establish that:

(i) Deportation or removal from the United States would result in extreme hardship;

(ii) The marriage upon which his or her status was based was entered into in good faith by the conditional resident alien, but the marriage was terminated other than by death, and the conditional resident was not at fault in failing to file a timely petition; or

(iii) The qualifying marriage was entered into in good faith by the conditional resident but during the marriage the alien spouse or child was battered by or subjected to extreme cruelty committed by the citizen or permanent resident spouse or parent.

(2) A conditional resident who is in exclusion, deportation, or removal proceedings may apply for the waiver only until such time as there is a final order of exclusion, deportation or removal.

(Paragraph (a) amended 5/23/94; 59 FR 26587 ) (Paragraph (a) revised effective 4/1/97; 62 FR 10312 )

(b) Fee . Form I - 751 shall be accompanied by the appropriate fee required under § 103.7(b) of this Chapter. (Amended 5/23/94; 59 FR 26587 )

© Reserved. (Removed and reserved effective 7/6/09; 74 FR 26933 ) (Amended 5/23/94; 59 FR 26587 )

(d) Interview . The service center director may refer the application to the appropriate local office and require that the alien appear for an interview in connection with the application for a waiver. The director shall deny the application and initiate removal proceedings if the alien fails to appear for the interview as required, unless the alien establishes good cause for such failure and the interview is rescheduled. (Revised effective 4/1/97; 62 FR 10312 )

(e) Adjudication of waiver application . (1) Application based on claim of hardship . In considering an application for a waiver based upon an alien's claim that extreme hardship would result from the alien's removal from the United States, the director shall take into account only those factors that arose subsequent to the alien's entry as a conditional permanent resident. The director shall bear in mind that any removal from the United States is likely to result in a certain degree of hardship, and that only in those cases where the hardship is extreme should the application for a wa iver be granted. The burden of establishing that extreme hardship exists rests solely with the applicant. (Paragraph (e)(1) revised effective 4/1/97; 62 FR 10312 )

(2) Application for waiver based upon the alien's claim that the marriage was entered into in good faith . In considering whether an alien entered into a qualifying marriage in good faith, the director shall consider evidence relating to the amount of commitment by both parties to the marital relationship. Such evidence may include --

(i) Documentation relating to the degree to which the financial assets and liabilities of the parties were combined;

(ii) Documentation concerning the length of time during which the parties cohabited after the marriage and after the alien obtained permanent residence;

(iii) Birth certificates of children born to the marriage; and

(iv) Other evidence deemed pertinent by the director.

uscis doesn't know about the divorce most times as that is one grey area of information sharing. it is within their right to commence removal proceeding upon termination of marriage which in itself terminates conditional green card status instantly. the only way to avoid this risk is to file immediately... again, the status as a conditional green card terminates immediately upon final divorce... the next second after the divorce, you have no marriage upon which to tie condition. why wait a minute to file?

Edited July 28, 2014 by ianhalliwell186

[oceanrock 0]

Thanks for the replies! So I know that I can file ROC anytime now and I will file a waiver due to a divorce. I will explain what happened in the cover letter.

I still want to clarify if I should only include evidence during our marriage or is it needed that I include evidence AFTER we divorced (as I've said we got back together so then we have had some stuff in our names after the divorce)? I don't want to send too much or too little. Any advice would be appreciated.

[oceanrock 0]

There will be an interview? It won't be a problem if there is one, I've just never heard of an interview for ROC.

File it when you have the evidence required. They always take a close look at marriages terminated in the first two years. be prepared with as much documentation as you can muster. I would also consider bringing in my ex with me to the interview. If you two obtain any counseling as part of your continued work on the marriage then bring the treatment notes. I would bring an affidavit from his mother as to the legitimacy of the marriage. For obvious reasons these types of affidavits carry a lot of wweight. You can certainly not file a joint petition, but his assistance and support will be helpful.

[Hypnos 6,576]

There can be an interview for RoC. Filing with a waiver request is not a guarantee that there will be one, or won't.

[Ian H. 207]

They are going to want to see evidence from during the marriage because that is what your green card is based on. The fact that you got back together with your ex husband may not help because you are legally not married. Maybe someone who's had this situation or know someone in a similar situation can chime in, but if you feel the extra docs help then by all means. I personally think that couples that try to patch things up deserve that chance. I've heard of people getting married and divorced to the same person 3 times. For immigration purposes, it's a whole other story. Because once you are divorced the situation changes. Maybe you can consult an attorney or other immigration expert if it would help, just in case you're still uneasy. Hope this helps!

Thanks for the replies! So I know that I can file ROC anytime now and I will file a waiver due to a divorce. I will explain what happened in the cover letter.

I still want to clarify if I should only include evidence during our marriage or is it needed that I include evidence AFTER we divorced (as I've said we got back together so then we have had some stuff in our names after the divorce)? I don't want to send too much or too little. Any advice would be appreciated.

[funkymunky 11]

Personally I think everything from before and now because the fact you show that you are willing to work on your relationship again could help prove it was bona fide in the first place. It still shows a lot of trust in each other to have things in both your names even though you are no longer married. Either way it wouldn't hurt your application and is there really such a thing as having too much evidence?

[MrsP2010 20]

There will be an interview? It won't be a problem if there is one, I've just never heard of an interview for ROC.

Yes, and they are much more likely in divorce cases. I read somewhere that cases are judged based on 'red flags' into three groups - ones with no red flags, ones that are somewhat questionable, and ones full of red flags. The ratio of interviews is something like 10% of the no-risk group, 50% of the medium risk group, and 100% of the high riskers. In summary, it's more likely if you have tons of fraud indicators, but still likely if your evidence is squeaky clean.

[MrsP2010 20]

Also to add, better to include lots of well-organized information than too little. If you do get called to interview, take every last scrap, and include even the stuff that seems pointless or unimportant. In my original packet I included a phone bill showing our joint line but only in my name, so at the interview I took one of my ex's new phone bills to his new address showing he still had the line. Stuff like that counts.