Advice on i751 and N400 pending with marriage issues

[Kayvan 1]

Hi,

 

Long time lurker here, finally need some advice. 

 

I have had my i751 pending since June 2016, It was supposed to have been reviewed at the CSC at the end of last year but was not. 

 

I filed my N400 in August 2017 before the i751 was reviewed as my attorney said it would not affect my i751 at all as the i751 has to be reviewed before the N400.

 

Seems my attorney doesn't know what hes talking about, as now it is pretty apparent that anyone who filed N400 while i751 was still in process has had them both combined and now its in the N400 waiting list, which for my location is 14 months behind (which means something like december/january 2018 before they get to it).

 

Heres the issue, my wife and i have been married for 4 years. However, i am pretty certain she is cheating on me, in fact i know she is. We have grown very distant, to the point we barely see or speak on a daily basis. She has even began staying out at nights, not all the time, but sometimes, also i am the bread winner of the household, and pay all the bills, she never used our CC unless for groceries but recently she charged thousands of dollars in one month which is another red flag to me, i did not even know until my bill was paid that it was so high.

 

If my paperwork is now on hold until a new priority date of around December/January 2018 i cannot keep my sanity for that long being treated this way. 

 

I would like some advice on my options. 

 

As far as i understand, i751 is either married or divorced, but the N400 is married only.

 

If i file for divorce i know id have to withdraw my N-400 only to re-apply as a 5 year green card holder (no big deal since my i751 has been pending so long thats less than 12 months anyway), but what effect of withdrawing an N400 when the i751 is tied to it does that have to the paperwork? Does the i751 go back to the CSC from the NBC? will it get adjudicated sooner and go back to the original priority date (which should have been reviewed in 2017) does it begin a whole new priority date? 

 

Secondly, i understand id have to write a letter to advise that i request my i751 be adjusted to a divorce waiver, does this change the burden of proof or requirements? does it cast additional suspicion onto my marriage?

 

I worry as our marriage was not 100% conventional, we got married at the court house as we both were in love with each other, and we planned to save up for a proper full blown wedding at a later date after my wife had graduated college as she decided to change career when we were dating (i can show the considerable savings in my bank account for this future wedding), it was also partly to help support my wife through college as she could get student loans based off my income, partly because of healthcare, dental care, eyecare etc. as i could put her on my insurance and generally take care of her as a husband would his wife. We never shared a bank account, she only had small part time jobs which i told her to keep that money for herself to help with college expenses, she has a credit card on my account that she uses, and i pay off whatever she buys (how she managed to spend thousands of dollars in one month).

 

I do have extensive other documentation to show cohabitation and legit marriage such as:

 

1. the general deeds and warranty deeds to our house have both of us named as husband and wife (we were married when i purchased it)

2. property taxes.

3. home and car insurance policies. 

4. HOA bills.

5. 4 years of tax returns filed jointly.

6. W-2s with our address.

7. memberships like AAA and Costco.

8. drivers license with shared address.

9. Health insurance policies/card.

10. Tax receipt of joint car purchase.

11. finance of joint car purchase.

12. title of joint car. 

 

We have about maybe 50 or so pictures together which inst a lot for a 4 year marriage, something i worry about as we weren't a 'selfie couple', i work 6 days a week and she was at college, and wed spend our spare Sunday walking the dogs or doing house work. I have lots of pics we took of each other doing things, such as me taking a picture opening her Christmas present, or me talking a picture of her with her family but i'm not sure if they are admissible if only one of us is in? I do have pictures with her family at special events, and when my parents visited i have pictures of herself with my parents also. Its not that we don't have any pictures together, we do, some with my family, some with hers, at a friends wedding, thanksgiving, Christmas, etc. Just not as many as i see other couples have. 

 

Unfortunately everything we financed over the years, furniture, refrigerator, washing machine, etc. was in my name only as she had next to no income and no credit. Since i was paying the bills i had no issue of putting only my name on those finances. 

 

Its the same issue with the bills, i paid the bills to the gas, electricity, cable etc. and they are all in my name only. However I can show her student loans, voter registration cards and other paperwork that share our address, i hope that may be admissible?

 

A possible slam dunk of evidence i think would be text messages. Google has backed up all my text messages since about 2014, so i have 3 years and tens of thousands texts i can submit as evidence that without a doubt would provide the marriage was bonafide. As a married couple we would text daily about issues with the house, our dogs, when we were buying furniture, school and work problems etc. I have no idea if this is admissible, but if it is it shows without a shadow of a doubt we were together legitimately.

 

I could also get affidavits, although not as strong as the other evidence i have mentioned, i think affidavits from my neighbors who we have lived with for 4 years, maybe my realtor who spent endless days house shopping when i was trying to buy the perfect house for her, or maybe Friends and family who i introduced her to as my wife. 

 

With all that said, what is my best avenue of action?

 

I was trying to ignore the general issues in my married life for now, but for the sake of my sanity i cannot take it any longer. I would be healthier to divorce her (i can prove her infidelity although it would be easier to file uncontested if she agrees), and file my i751 currently on my own and then reapply for my N400 again, and to not have to worry about this whole messed up situation.

 

I just worry about the effect a divorce before my ROC has on casting any doubt on our marriage since it wasn't 100% conventional in the sense we didn't have a big blow out wedding with family and didn't share bank accounts.

 

Anyway, i think i've vented everything thats been bobbling around in my mind. I hope someone out there can offer any advice... Its hard enough dealing with a failing marriage, but add to the fact that my entire life is on a knife edge because of this paperwork the pressure is getting impossible to bare.

 

[mindthegap 2,521]

18 minutes ago, Kayvan said:

As far as i understand, i751 is either married or divorced, but the N400 is married only.

Correct, if the N-400 is based on marriage. You would have to wait until 90 days preceding your five year PR anniversary to apply again if no longer 'living in marital union'.

 

Welcome to limbo-land.

[Kayvan 1]

1 hour ago, mindthegap said:

Correct, if the N-400 is based on marriage. You would have to wait until 90 days preceding your five year PR anniversary to apply again if no longer 'living in marital union'.

 

Welcome to limbo-land.

I understand that, my post was more about the dozens of other questions i have like what does withdrawing my N400 do to my i751 that is tied with it? do i have enough evidence for a divorce waiver? Can i submit text messages as evidence?

[mindthegap 2,521]

2 minutes ago, Kayvan said:

I understand that, my post was more about the dozens of other questions i have like what does withdrawing my N400 do to my i751 that is tied with it? 

I honestly don't know. I can't see how it would go to the back of the line or anything, or adversely affect it. May even speed it up anyway.

 

2 minutes ago, Kayvan said:

 do i have enough evidence for a divorce waiver? 

Divorce waiver petitions are still adjudicated on the evidence of bona-fide-ness provided.

 

3 minutes ago, Kayvan said:

Can i submit text messages as evidence?

Yes.

[Kayvan 1]

133 views and no advice? 

[divorcedgayman 11]

35 minutes ago, Kayvan said:

133 views and no advice? 

 

First of all, I am really sorry to hear that your marriage has not been working. I know this is difficult emotionally.

 

I am by no means an attorney or an expert in immigration law. I do recommend seeking additional legal counsel to discuss your situation.

 

However, my understanding is that you need to inform USCIS of any changes in your relationship, such as separation or divorce, BEFORE I-751 is adjudicated. Right now, I-751 will be adjudicated together with N-400. It is my understanding that if you are currently separated and you fail to inform the USCIS before I-751 is adjudicated, you may be in some legal trouble. 

 

If you do inform USCIS that you are separated in a letter or divorced through changing the status of your I-751, I want to believe they will simply ignore your N-400, and adjudicate your I-751 accordingly. 

Edited January 12, 2018 by divorcedgayman

[Kayvan 1]

6 minutes ago, divorcedgayman said:

First of all, I am really sorry to hear that your marriage has not been working. I know this is difficult emotionally.

Thank you, although very difficult emotionally i feel that as i have a legitimate marriage and the amount of bonafide evidence i have i should have nothing to worry about, correct?

 

7 minutes ago, divorcedgayman said:

However, my understanding is that you need to inform USCIS of any changes in your relationship, such as separation or divorce, BEFORE I-751 is adjudicated. Right now, I-751 will be adjudicated together with N-400. It is my understanding that if you are currently separated and you fail to inform the USCIS before I-751 is adjudicated, you may be in some legal trouble. 

As far as i have been advised that is incorrect, there are two different requirements between the i751 and the N400.

 

For the i751, I can only advise USCIS and request a change to divorce waiver once my divorce has been finalized as there is no 'separated' option for i751, its either married or divorced, and divorce is no where near happening as me and my wife have not broken up, and even when i get to that point it takes 60+ days for cooling off and a judge to sign the papers. So technically we are still married, as in we are legally married and share the same home, if shes cheating on me that does not mean we are not married.  According to my attorney if i am not divorced by the time my i751 adjudication comes around, i simply go to the interview under the joint paperwork as it was filed as married, and i am still technically married and i would be honest to the officer, if he were to say ask me specifically if i have any issues with my marriage, i would tell the truth. Again, as far as i have been advised, the requirements for bonafide marriage are exactly the same. 

 

The N-400 the requirement is you have to be married, as we all know if you are separated or divorced you have to withdraw the 3 year N-400 application. Again, as we are not technically separated or divorced yet i have not withdrawn that application, at the very least i want some concrete information on what happens to my i751 when i withdraw an N400 now that both are tied together.. does my i751 go back to CSC? does it get thrown in the trash and i have to refile? does it stay in the N-400 priority queue its been placed in and i still have to wait a year for review?

 

This is where i am in a further grey area, if i am separated in a few months time, i would have to withdraw my N-400, however my i751 would stay as joint since i may not be divorced... what does that mean if both are planned to be adjudicated at the same time?

 

I'm surprised i haven't got more advice on here, i have followed this place a lot and people seem to be very forth coming with solid advice, i'm disappointed ive only had 2 replies. 

 

I am just very paranoid about every step i take now, my attorney has been wrong about things (such as him categorically telling me my N400 application will not affect my i751 at all, when in fact it meant my i751 priority date is now worthless) so i want as many opinions as i can get going forward. 

 

At this point im honestly thinking about finding a new immigration attorney anyway, i feel like they already have my money for filing the paperwork and now the extra complexities they do not want to deal with.

[mindthegap 2,521]

17 minutes ago, Kayvan said:

 

For the i751, I can only advise USCIS and request a change to divorce waiver once my divorce has been finalized as there is no 'separated' option for i751

You can change to a divorce waiver at anytime once divorce proceedings have commenced.

However, once you have requested the waiver, the I-751 cannot be approved without having a final decree. You will be given an opportunity to present this - usually by RFE, or if it goes that far, to an immigration judge as any denial and subsequent removal proceedings would be stayed pending the final decree.

 

19 minutes ago, Kayvan said:

 

The N-400 the requirement is you have to be married, as we all know if you are separated or divorced you have to withdraw the 3 year N-400 application. Again, as we are not technically separated or divorced yet i have not withdrawn that application

Not just still married...the exact phrase USCIS use is 'living in marital union' 

 

27 minutes ago, Kayvan said:

According to my attorney if i am not divorced by the time my i751 adjudication comes around, i simply go to the interview under the joint paperwork as it was filed as married, and i am still technically married and i would be honest to the officer, if he were to say ask me specifically if i have any issues with my marriage, i would tell the truth. Again, as far as i have been advised, the requirements for bonafide marriage are exactly the same. 

Firstly, there is no guarantee that you would get an interview.

Secondly, if you were to be scheduled an interview for a joint filing, your spouse must attend. If they were to not attend, you would be denied, unless you requested a switch to a waiver at that time. As above, you can switch to a divorce waiver without being divorced, but it cannot be approved until the divorce is final.

Would love to be a fly on the wall with you being honest to the interviewer sat next to your spouse who you were reliant on for the joint filing - not a great place to find out that your affair has been rumbled.....

 

Thirdly, should your joint petition be approved without informing USCIS that there has been a major material change in your circumstances, you can subsequently be denied your N-400 at a later date, even under a five year filing. Paging @charmander who has the link to someone on here who experience exactly that, somewhere in his rolodex

 

31 minutes ago, Kayvan said:

Again, as far as i have been advised, the requirements for bonafide marriage are exactly the same. 

As I posted above, both joint and divorce filings are adjudicated on the evidence of bona-fide-ness provided.

 

20 minutes ago, Kayvan said:

at the very least i want some concrete information on what happens to my i751 when i withdraw an N400 now that both are tied together.. does my i751 go back to CSC? 

Either back to CSC, or will remain at the local field office that it has been sent to for adjudication with the N-400, for adjudication by itself.

 

21 minutes ago, Kayvan said:

does it get thrown in the trash and i have to refile? 

no

 

22 minutes ago, Kayvan said:

This is where i am in a further grey area, if i am separated in a few months time, i would have to withdraw my N-400, however my i751 would stay as joint since i may not be divorced... what does that mean if both are planned to be adjudicated at the same time?

You are getting too stressed out over some things you really shouldn't.

 

They are separate applications and are still treated separately. 

Yes, it is true that the N-400 cannot be approved until the I-751 is approved and it forces adjudication of it usually at the same time, but it still remains a distinct and separate petition. It won't somehow be cancelled or disregarded because you are no longer N-400 eligible at this time.

 

Stop stressing out over stuff you cannot control in any way.

 

25 minutes ago, Kayvan said:

I'm surprised i haven't got more advice on here, i have followed this place a lot and people seem to be very forth coming with solid advice, i'm disappointed ive only had 2 replies. 

They are probably still reading your (very long) first post...

 

26 minutes ago, Kayvan said:

I am just very paranoid about every step i take now, my attorney has been wrong about things (such as him categorically telling me my N400 application will not affect my i751 at all, when in fact it meant my i751 priority date is now worthless) so i want as many opinions as i can get going forward. 

 

At this point im honestly thinking about finding a new immigration attorney anyway, i feel like they already have my money for filing the paperwork and now the extra complexities they do not want to deal with.

 

Sounds about right

Not all attorneys are created equal.

 

 

 

 

[Kayvan 1]

15 minutes ago, mindthegap said:

 

 

 

 

 

Thanks for the detailed response. I really appreciate it, as i am in a little bit of limbo i believe i have time as my attorney says that my priority date is now for my N-400 which according to my field office is a full 14 months behind, which means around December 2018 before an interview. 

 

As this has all just happened, i am seeking advice and letting the dust settle. With the 60 days before a final divorce decree, say if i file around March to be divorced around May and advise USCIS i will still be ok?

 

From your response it seems like you are kind of recommending to get divorced ASAP and tell USCIS.. Which may be good advice, but as i process all these new developments and get my ducks all in order id rather prefer some time to figure everything out and adjust. 

 

19 minutes ago, mindthegap said:

You are getting too stressed out over some things you really shouldn't.

Thank you, its just very hard not to get stressed. Do you feel the list of evidence that i have is solid enough to provide bonafide? After compiling all my evidence it has made me feel much better, as i believe the sheer volume of evidence such as deeds, taxes, cars, insurance and then thousands of text messages every day for the 4 years is more than enough to provide the legitimacy of our marriage.