Joint I-751 application pending. Living apart and we both want a divorce. Do I need an attorney, refile or divorce waiver?

[Treen 0]

I'm in a very messy situation. I moved from the UK to the US, just over 2 and a half years ago. My marriage has been very rocky throughout this time and we've had marriage couselling in the past. Last year in October, my husband and I filed jointly for my I-751 form. Things weren't great back then but they weren't as bad either. We both agreed that we needed to go couseling again. Soon after I filed my joint petition, my husband decided to book another trip to Thailand (he's been 27 times before) and also went during the first year of our marriage and keeps in touch with his exes he met over there. He refuses to take a trip there together. Besides that, we have so many other marriage issues that have torn our marriage apart. After huge blowouts and constant fighting, I felt like I had no choice but to leave. He filed for divorce but we held back, believing that we could still make this work. We live 5 minutes apart from each other and still see each other. I arranged counselling sessions but even while we've been living apart, our arguments got worse and the trust is completely destroyed. I can't see a future with him anymore

If we go through with the divorce, what do I do? I've been getting conflicting answers.

My joint I-751 is pending but we live apart now. I've changed my address online with USCIS. I also spoke to an attorney that told me I'd have to refile a new I-751 and get my biometrics and start the process from the beginning. I've also been told that I just need to send a letter requesting a waiver when my divorce is final/pending? I'm so confused and wondering if it's best to just hire an immigration attorney. Problem is, costs are very high.

Edited March 5, 2015 by Treen

[Nich-Nick 3,353]

Read this similar thread. The post I am linking you to is toward the end and gets to the heart of the matter. The memo posted later is very good. Read it. http://www.visajourney.com/forums/topic/538763-wife-and-i-submitted-paperwork-now-we-are-separatedwhat-to-do-please-help/?p=7503357

I think it will help answer some questions you have if not all of them.

[tuckin14 58]

My wife and I went through a similar situation - I am the USC. I was pretty perturbed that after living in different countries for 2 1/2 years after getting married, she moved to the USA and the next day threw me out. That's just for perspective.

We filed the I-751 days before I left. (To be clear, she told me to leave the day after she got here, but I hung on for about 6-7 weeks.) I don't know a great deal of what happened with her immigration after that, but I know a few thing. First, very strangely, USCIS took no action on the case for 9 months. We submitted almost no evidence of bona fide marriage (there wasn't any), and I don't think she got an RFE.

We were both called for an interview about a year after she applied. I did not go. (I told her and her attorney I wasn't going, and they made no attempt to get me there.) Five days after the interview I got a letter stating that she had been denied because both spouses have to attend, and her joint petition could not be converted to a divorce waiver because we had neither filed for divorce nor obtained a legal separation.

More on the aftermath later...

Here would be my understanding. First, you don't have to show the marriage was happy or successful, only that at the time you got married, your intention was to have a bona fide marriage. USCIS looks to all the facts and circumstances, to try to understand what your intention was.

You have no legal obligation to tell USCIS that you have separated. Maybe you will get approved without further ado. This assumes of course that your husband doesn't withdraw the petition.

As I understand it, you don't even have to tell USCIS if you get an RFE. Of course you can't lie to them. And there may be situations that can't be adequately explained without noting that you are separated or divorced.

Let's say your spouse withdraws the I-751, which is his right. NOW you have to refile with a divorce waiver. USCIS is very liberal about what constitutes "divorce." In the case of my wife, the denial letter strongly implied that either a legal separation or a divorce filing would have been adequate. You don't need a final divorce decree.

If you are called for an interview, you will both have to go. If he won't go, your only option is to go to the interview with a copy of the legal separation, divorce filing, or divorce decree, and ask to change to a waiver filing.

If it will make you feel better, by all means write to USCIS and tell them that you have separated and filed for divorce. Tell them you still see each other and maybe things will work out. It won't really matter to them but it might avoid an awkward moment when they ask "Why didn't you tell us you were separated" and all you can say is "You didn't ask."

I am 99% sure you do not have to withdraw the joint filing and start over, although it might be safer to do so IF you feel your husband will be uncooperative.

The aftermath of my wife's interview - I don't know that much, but I know that 5 months later she's still in the USA and working. I think she has filed again, which is kind of curious to get a fresh start after getting turned down. She was ordered to surrender her green card, but I was told that at some point you become a "temporary legal resident" of the USA. I got some information from USCIS that implied basically that you can keep re-filing and re-filing after each denial and as long as you're willing to pay the fees, you can do this almost indefinitely.