Removing Conditions from Green card while seperated

[jonesyb84 0]

Hi all!

OK here's my situation:

My conditional residence expires at the end of this month. My spouse (US citizen) and I are separated and are currently going through a divorce, but this is pending and will not be complete by the time my green card expires. I know that we can't file jointly as this would be viewed as fraud, and we have no intention of doing this either.

My issue lies with; when do I submit the I-751 form? Before the expiry date, showing that the divorce is in progress asking for a 'waiver' of jointly filing? Or do I wait until the divorce is settled and then apply the I-751 late asking for a waiver? Problem is, if I submit this late, will this mean I can not work or leave the country seeing as i'm out of status?

I've read a number of conflicting comments on this subject and obviously want to get it right!

Many thanks in advance

[teeak 224]

You can file as jointly -- to prove that you entered into the marriage with good faith (marriage was bonafide), however, as it happens with many couples, it just didn't work out. If your spouse is willing to file jointly with you and attend the interview then this would be the best course of action.

If your spouse is not willing to file with you then you could file by yourself evidencing extreme hardship if your permanent residency is terminated.

You must file the I751 before your GC expires or else you will need to leave the country since you will be out of status.

To qualify for the divorce-based waiver you need to show that your divorce is final or you can submit it and USCIS will issue an RFE asking you to send the final decree within 87 days but this is only good if you're close to the end of the proceedings.

Edited January 5, 2016 by teeak

[NikLR 13,220]

Ignore the filing jointly advice. File with a divorce waiver and they will RFE you for the divorce decree.

I do agree that you should not file late!

But filing late does not mean you are instantly out of status and have to leave.

Also. ~~moved to ROC from IR1/CR1 process and procedures~~

[jonesyb84 0]

Thank you very much for your timely response. I have some more questions put i'll open up another thread for that.

Thanks again

[newacct 688]

Filing jointly is not fraud as you are indeed currently married and entered the marriage in good faith. A joint filing can be approved even if the people are going through divorce (that isn't finalized yet), as long as both people are willing to attend the interview if there is one. However, if the two of you are not willing to file jointly, then it is a moot point.

[tuckin14 58]

You should definitely file on time, in whatever way.

If your spouse is willing to file jointly, you should do that. I think the form has a place for addresses of both the petitioner and the applicant, so show your different addresses. Don't lie about anything, but filing jointly while not living together and a divorce is pending is not "fraud."

In my case, my ex-wife and I filed jointly at the same time we were separating. I filed a change of address with USCIS, and I also wrote to inform them that we were separated. When her interview came up, which was a full year after the application and before we had actually filed for divorce, we were both invited. I declined to attend, and her petition was denied as "abandoned" based on my non-attendance. I don't know what happened after that but I think that she filed again with a divorce waiver.

If your spouse will not file for ROC, then you really have no choice but to file with a divorce waiver. However, based on my personal experience, they will accept a divorce filing as evidence of divorce; you do not have to have the final divorce decree. (I know that is not the conventional wisdom on this site, but it is explicitly what I was told by a USCIS immigration decision officer.)

[Villanelle 4,121]

If your spouse will not file for ROC, then you really have no choice but to file with a divorce waiver. However, based on my personal experience, they will accept a divorce filing as evidence of divorce; you do not have to have the final divorce decree. (I know that is not the conventional wisdom on this site, but it is explicitly what I was told by a USCIS immigration decision officer.)

Eh this statement is true but it has to be in the correct context.

If you file a joint petition and they discover you are separated/divorcing/divorced then they give you the option of converting to a divorce waiver OR remaining in the joint petition and being evaluated on its merits. You do not need the final decree if you remain in a joint petition to be approved.

If you file with a waiver or convert to a waiver- you can submit the divorce filing if you dont have the decree yet and its accepted and used as proof of being eligible for the waiver box. They will not approve you in this case with out the final decree.

For the OP - you must submit your petition before the card expires. If you do not have the final decree thats ok. If you want to file as a waiver- send what you have as evidence along with proof the divorce is pending and you will be RFE'd for the final decree. If you do not have it in time to respond they will 'deny' you and you will have to go to immigration court where you can present it if you have it or they will give you time to present it.

If you want to file joint- then file joint being sure to note you are in divorce proceedings. They will follow procedure and RFE you asking if you want to switch to a waiver and submit the decree. You can choose to remain in the joint filing however most people do not go this path because it requires an extreme amount of trust in the other person to show up at the interview and not say anything that could jeopardize the outcome.

[jonesyb84 0]

Thank you for all of your replies.

So, if the divorce has already been filed and is pending, is there any value in filing jointly? I mean, wouldn't it be better to just go down the singularly waiver route?

[NikLR 13,220]

If the divorce has been filed then go down the waiver route.