Divorce while i751 pending

[ThousandMoreSteps 50]

I filed in March '17 with CSC, so it should be a couple more months before I actually get approved. Well hopefully. My spouse and and I are getting a divorce, after what will be 5 years of marriage in October.  We can't file until we have lived in our current state for a year which will be October. I am aware from reading similar threads that there is no 'divorce pending category'. However,  would it be seen as deceiving once I apply for citizenship later in the year that I didn't notify USCIS of the pending divorce?

[Jameson78 32]

25 minutes ago, ThousandMoreSteps said:

I filed in March '17 with CSC, so it should be a couple more months before I actually get approved. Well hopefully. My spouse and and I are getting a divorce, after what will be 5 years of marriage in October.  We can't file until we have lived in our current state for a year which will be October. I am aware from reading similar threads that there is no 'divorce pending category'. However,  would it be seen as deceiving once I apply for citizenship later in the year that I didn't notify USCIS of the pending divorce?

No, you don't have a duty to notify them until you are divorced and have the decree. I'll be in a similar situation, actually. There's nothing they can do about it. The only thing that you mustn't do under any circumstances is lie to them, i.e., pretend you are living together when you're not, at the filing stage (or interview, if it comes to that). But it looks like that wasn't the case, right? 

 

One thing to be wary of is that if you get randomly selected for an interview, she will have to attend, or you'll be denied and have to convert to a waiver, which will take even longer. So it would be best for you if you stay on good terms, and don't kick the hornets' nest, from this perspective.

 

Oh and one other thing: DO NOT apply for citizenship yet, if you are planning to get divorced. You have to have an ongoing matrimonial relationship by the time you are naturalized, for the 3-year rule. So forget about that, and wait for another two years, then apply. If you try to naturalize after divorce has been filed, then that would be considered fraud.

Edited June 16, 2018 by Jameson78

[geowrian 22,336]

As noted, you are not required to notify them of the change, but usually it is wise to do so. Without switching to a divorce waiver, both of you will need to be at the interview (if you get one, which seems to be the norm nowadays). You need to be honest with them about the current state of things with anything asked. There's the possibility that your spouse will tank the interview or not show up at the last moment. It is a considerable risk IMO. You're responsible for your own case in the end, not your spouse/former spouse.

 

That said, if you file for citizenship and they discover that you did not notify them of a pending (or completed) divorce and it seems to the IO that you misrepresented your marriage situation, it can still be used against you.

[ThousandMoreSteps 50]

I understand switching to a divorce waiver, but we can't because we cannot physically file into October of this year.

[Jameson78 32]

5 minutes ago, geowrian said:

As noted, you are not required to notify them of the change, but usually it is wise to do so. Without switching to a divorce waiver, both of you will need to be at the interview (if you get one, which seems to be the norm nowadays). You need to be honest with them about the current state of things with anything asked. There's the possibility that your spouse will tank the interview or not show up at the last moment. It is a considerable risk IMO. You're responsible for your own case in the end, not your spouse/former spouse.

 

That said, if you file for citizenship and they discover that you did not notify them of a pending (or completed) divorce and it seems to the IO that you misrepresented your marriage situation, it can still be used against you.

"Seems to be the norm nowadays?" Are you sure? Almost nobody with a normal situation is getting interviewed at the moment...

[geowrian 22,336]

2 minutes ago, Jameson78 said:

"Seems to be the norm nowadays?" Are you sure? Almost nobody with a normal situation is getting interviewed at the moment...

Maybe so...I don't follow ROC timelines as closely as other types of cases but I heard there has been an uptake. However, I did some timeline searches here and it does seem that many cases are still being adjudicated without an interview.

[ThousandMoreSteps 50]

It'll be our 5th Anniversary at the beginning of Oct before I file. So that's not an issue. 

21 minutes ago, Jameson78 said:

No, you don't have a duty to notify them until you are divorced and have the decree. I'll be in a similar situation, actually. There's nothing they can do about it. The only thing that you mustn't do under any circumstances is lie to them, i.e., pretend you are living together when you're not, at the filing stage (or interview, if it comes to that). But it looks like that wasn't the case, right? 

 

One thing to be wary of is that if you get randomly selected for an interview, she will have to attend, or you'll be denied and have to convert to a waiver, which will take even longer. So it would be best for you if you stay on good terms, and don't kick the hornets' nest, from this perspective.

 

Oh and one other thing: DO NOT apply for citizenship yet, if you are planning to get divorced. You have to have an ongoing matrimonial relationship by the time you are naturalized, for the 3-year rule. So forget about that, and wait for another two years, then apply. If you try to naturalize after divorce has been filed, then that would be considered fraud.

 

[Jameson78 32]

1 minute ago, ThousandMoreSteps said:

It'll be our 5th Anniversary at the beginning of Oct before I file. So that's not an issue. 

 

Well, the 5 year rule has nothing to do with how long you have been married. It is 5 years since you became a permanent resident. So I repeat: DO NOT file for citizenship on the basis of marriage to a US citizen under the 3-year rule, if you are getting divorced. Wait until you have been a PR for 5 years. Trust me on this.

[Jameson78 32]

2 minutes ago, ThousandMoreSteps said:

My spouse is a he, and he's already starting to be difficult. He would not show up for an interview. I'm flying home for a month and a break from all the drama, I think it is probably best to have a lawyer on the back burner just in case. I just didn't want to look like I was trying to be fraudulent when going for my n400. The marriage has been turbulent, but it was very much real.

Right, well same deal applies regardless of gender, lol. Yes, it would be good to at least consult a lawyer, so your options are laid out clearly. Price is the best indicator of quality, as well as law school attended. Your best bet would be to hang tight, and you'll likely be approved without an interview like 90% of people are, assuming you had a good evidence packet. If you do get an interview, then just inform them of the situation, ask to convert to a waiver, and have a lawyer intercede. Then, present the divorce decree, and they'll adjudicate on the basis of the good faith documents you submitted. You'll be fine. I'd certainly recommend the consultation, however. 

 

Regards,

[little immigrant 800]

Hi my situation was similar. We filed for ROC jointly but then we separated. I didn't do anything but wait. Thankfully I didn't get called for an interview because I'm sure he would have sabotaged it by not showing. After I received my 10 hear GC I tried to work out the marriage for one more year but then filed for divorce. I naturalized under the 5 year rule. I hope everything is going well with you and your application. 

[Scazy 78]

7 hours ago, Jameson78 said:

Right, well same deal applies regardless of gender, lol. Yes, it would be good to at least consult a lawyer, so your options are laid out clearly. Price is the best indicator of quality, as well as law school attended. Your best bet would be to hang tight, and you'll likely be approved without an interview like 90% of people are, assuming you had a good evidence packet. If you do get an interview, then just inform them of the situation, ask to convert to a waiver, and have a lawyer intercede. Then, present the divorce decree, and they'll adjudicate on the basis of the good faith documents you submitted. You'll be fine. I'd certainly recommend the consultation, however. 

 

Regards,

I wonder what are the chances that during the interview adjudicator refuse to convert to waiver and simply deny petiotion for “no show”?  Or that is not likely? Then other way would be to re file with a waiver or present the case in front of the judge? 

My friend is going through the same exact situation and it’s crazy how often we see such threads here now when ROC is talking up to 20 months...

Edited June 17, 2018 by Scazy

[NikLR 13,220]

If you are called for interview, and your spouse will not be supportive because they want to divorce, switch to a divorce waiver at that time.  Otherwise just live your life. 

No you cannot file for citizenship until you've been an LPR for 5 years if you are divorcing. 

[Ontarkie 13,968]

~~Post removed for bypassing language filter. One post removed for quoting. Do not bypass the language filter or admin action will be taken.~~

[Bebe1 78]

On 6/16/2018 at 4:55 PM, little immigrant said:

Hi my situation was similar. We filed for ROC jointly but then we separated. I didn't do anything but wait. Thankfully I didn't get called for an interview because I'm sure he would have sabotaged it by not showing. After I received my 10 hear GC I tried to work out the marriage for one more year but then filed for divorce. I naturalized under the 5 year rule. I hope everything is going well with you and your application. 

Hello, 

 

While on this topic, i have a friend who was approved (ROC) a couple months ago. She was separated w/her spouse for a short period of time, and now they have worked things out and she's moving back w/her spouse this month. She wanted to know if she can file for the n-400 under the 3year rule but was confused because of the short period of separation. 

 

I am of the opinion that she shouldn't, as they count for continuous residence with spouse for that 3 years and she is short some months due to the period of separation (marital issues). I know there is no straight answer to this especially since if she applies for n-400, the officer will ask for the gap in her residence and review her file based on that. depending on who she gets, that may be a no no or yes maybe, we will approve pending further investigation.

 

Not sure what other vj'ers think and wanted to throw the question out there in case anyone had an input.

 

Should she file under the 3 year rule or wait to file under the 5 year rule. What does everyone think?

[geowrian 22,336]

24 minutes ago, Bebe1 said:

While on this topic, i have a friend who was approved (ROC) a couple months ago. She was separated w/her spouse for a short period of time, and now they have worked things out and she's moving back w/her spouse this month. She wanted to know if she can file for the n-400 under the 3year rule but was confused because of the short period of separation. 

The requirement under the 3 year rule is that you must be an LPR for the 3 years prior to filing AND married to a USC for the entire same 3 year period while in marital union. So if somebody was legally separated or divorced during that period, then they won't qualify. If they weren't legally separated but physically lived apart on a non-temporary basis (i.e. living apart due to school or work or other temporary reason is permitted) then the marital union piece of it is not met.

Edited June 18, 2018 by geowrian