I-864 Withdrawal Letter Sent, Pending I-751 and Divorce

[shynepapin 4]

Hi VJers,

 

I know my situation can not be the first, but since some of the similar situation dates back to 2012, 2013, I thought it would be best to ask for fresh ideas and suggestions based on today's USCIS scenario. I've been a member for a long time and avid user of VJ, but mostly on lurking and contributing every now and again, when certain situations I've actually been through myself arises.

 

Right now, I am stuck as to not knowing the way forward, I have ideas which includes filing the N400 but that might be a risk. I've been married since Jan, 2015, met in 2014, came to the U.S with a Student Visa and while I'm sure me and wife still loves each other, but she says she's just not in-love with me anymore and getting a divorce. Like any marriage, I know the sea is not always smooth sailing, there will be tough times but it seems I just can not survive the rough tide.

 

I filed for ROC in November, 2017 and NOA1 is 11/22/17, Biometrics 12/21/2017. Last week, my wife sent I-864 withdrawal letter because after talking to a few friends who had been or are in similar situation. The next day 01/18/19, I received a notification that my case has been transferred to another jurisdiction, found out it's to Nebraska, but, I'm in Texas. 

 

We still live together, separate rooms and the final separation date might be in July, My 18 months extension letter expires July, 14 as well. I know that she would have the divorce forms, either signed and ready as my gut tells me.

 

So my question here is simple, what can I do in terms of my pending I-751, don't want it denied based on her letter of withdrawal and if an interview is scheduled, without a divorce decree yet, what are my options?

[aaron2020 11,651]

Your wife can not withdraw the I-864.  That shipped passed once you got your green card.

 

You will probably need a divorce waiver for the ROC.

 

There is nothing she can do to you.  She can't do anything about your green card.  

[mushroomspore 3,043]

This is the bad thing about taking legal advice from "friends". It can be so inaccurate. Your ex cannot withdraw the I-864 at this point. Carry on with RoC and send in a copy of the divorce decree once you get it.

[H-M 169]

Your wife cannot just withdraw from her I-864 obligations simply by sending a letter. Since you have already adjusted to a permanent resident (GC) status, there is not much she can do. As per I-864 instructions, her obligations would continue until the following conditions are met:

 

How Long Does My Obligation as a Sponsor Continue?
Your obligation to support the immigrants you are sponsoring in this Affidavit of Support will continue until the sponsored
immigrant becomes a U.S. citizen, or can be credited with 40 qualifying quarters of work in the United States.
Although 40 qualifying quarters of work (credits) generally equates to 10 years of work, in certain cases the work of a
spouse or parent adds qualifying quarters. The Social Security Administration can provide information on how to count
qualifying quarters (credits) of work.
The obligation also ends if you or the sponsored immigrant dies or if the sponsored immigrant ceases to be a lawful
permanent resident. Divorce does not end the sponsorship obligation.

 

Regarding your ROC petition, if you filed jointly you need to convert it to divorce waiver petition. There is plenty of information on this topic in this forum, check under the Effects of Major Family Changes on Immigration Benefits sub-forum.

Also, here is some more information on this topic from USCIS:

https://www.uscis.gov/green-card/after-green-card-granted/conditional-permanent-residence/remove-conditions-permanent-residence-based-marriage

 

If You Are In Divorce Proceedings But Are Not Yet Divorced

If you are still married, but legally separated and/or in pending divorce or annulment proceedings, and:

• You filed a waiver request. We will issue a request for evidence (RFE) specifically asking for a copy of the final divorce decree or annulment (if applicable).
• You filed a Form I-751 petition jointly. We will issue a request for evidence (RFE) specifically asking for a copy of the final divorce decree or annulment and a statement that you would like to have your joint filing petition treated as a waiver.

Upon receipt of the final divorce decree or annulment within the specified time period, we will amend the petition, to indicate that eligibility has been established for a waiver of the joint filing requirement based on the termination of the marriage.

 

Hope this helps & good luck!

[geowrian 22,335]

She can't withdraw the I-864 anymore.

 

If things get nasty in the divorce process, it might not be a bad idea to bring up the I-864 with a divorce attorney regarding division of assets. 😆

[mindthegap 2,535]

   

 

 

1 hour ago, shynepapin said:

Last week, my wife sent I-864 withdrawal letter because after talking to a few friends who had been or are in similar situation.

Not possible.

Your death, losing your LPR status (note: ONLY by filing an I-407 or by a final order of removal by an immigration judge - an I-751 denial letter does NOT terminate I-864 obligations), becoming a citizen, or accumulating 40 quarters of work as a LPR are the only ways she can do this, which obviously a letter does not do. You could divorce and remarry, and the I-864 would still be in effect.

The friends egging her on are incorrect, but this is nothing new.

 

1 hour ago, shynepapin said:

I know that she would have the divorce forms, either signed and ready as my gut tells me.

Listen to your gut. Most importantly protect yourself and look after YOU, and look after YOUR interests at this point.

 

 

1 hour ago, shynepapin said:

So my question here is simple, what can I do in terms of my pending I-751, don't want it denied based on her letter of withdrawal

Nothing really until divorce is final. If you as the petitioner notify that you wish to switch to a divorce waiver  then they will RFE you for the final divorce decree, which of course you don't have yet.

If you don't reply to the RFE with it - standard RFE response time is 87 days - then you will receive a denial letter (note, this is a denial letter - not immediate termination of status), and you would have extra hoops to jump through, up to and including a possible hearing with an immigration judge and having to file a new I-751 with a divorce waiver off the bat and another long wait for it to be adjudicated.

Not ideal, but not the end of the world or your time in the US - just a stressful PITA which you really don't want to go through.

 

 

 

1 hour ago, shynepapin said:

and if an interview is scheduled, without a divorce decree yet, what are my options?

At the interview you would request a switch to a divorce waiver. If you didn't have the decree at that time, you would await the RFE.

Since it will no longer be a joint filing, your I-751 cannot  be approved until the divorce is final.

As I am sure you can see, timing is everything with this situation you are in now....

 

 

 

1 hour ago, aaron2020 said:

There is nothing she can do to you.  She can't do anything about your green card.  

While ultimately true, she can delay it and make it much more difficult than it needs to be.....I have the denial to prove that although rare, it can and does happen.

 

 

Edited January 23, 2019 by mindthegap

[mushroomspore 3,043]

12 minutes ago, shynepapin said:

 

 

 

 

I definitely know what taking advice from friends do, as sometimes while they come from a perspective of having your back, they are ultimately wrong because their experiences and personal thought process and wishes is almost always projected in their advises.

 

She's surrounding by friends and family whose experiences of marriage is non-existence, shitty and abusive and ultimately divorced in the shortest amount of time. Longest one is in a divorce right now and cannot seem to be reliable in terms of advise bec

Well the good news is that USCIS allows people to file RoC with a divorce waiver or to amend their RoC filing to a divorce waiver so long as a copy of the divorce decree is provided. Your ex's letter will have zero effect.

[shynepapin 4]

1 hour ago, mindthegap said:

   Not possible.

 

 

While ultimately true, she can delay it and make it much more difficult than it needs to be.....I have the denial to prove that although rare, it can and does happen.

 

1 hour ago, geowrian said:

She can't withdraw the I-864 anymore.

 

If things get nasty in the divorce process, it might not be a bad idea to bring up the I-864 with a divorce attorney regarding division of assets. 😆

 

1 hour ago, H-M said:

Your wife cannot just withdraw from her I-864 obligations simply by sending a letter. Since you have already adjusted to a permanent resident (GC) status, there is not much she can do. As per I-864 instructions, her obligations would continue until the following conditions are met:

 

Upon receipt of the final divorce decree or annulment within the specified time period, we will amend the petition, to indicate that eligibility has been established for a waiver of the joint filing requirement based on the termination of the marriage.

 

Hope this helps & good luck!

 

2 hours ago, mushroomspore said:

This is the bad thing about taking legal advice from "friends". It can be so inaccurate. Your ex cannot withdraw the I-864 at this point. Carry on with RoC and send in a copy of the divorce decree once you get it.

 

2 hours ago, aaron2020 said:

Your wife can not withdraw the I-864.  That shipped passed once you got your green card.

 

 

I definitely know what taking advice from friends do, as sometimes while they come from a perspective of having your back, they are ultimately wrong because their experiences and personal thought processes and wishes is almost always projected in their advises, I have a psychology educational and career background, that's why I say this.

 

She's surrounding by friends and family whose experiences of marriage is non-existence, some of them have never been married, or been through shitty and abusive and ultimately relationship or divorced in the shortest amount of time. Longest one is in a divorce right now and cannot seem to be reliable in terms of advise because she's having to deal with being emotional stress and heart-broken. And most of which know the experiences and challenges faced in transnational relationship and marriage, either cultural and personally.

 

I'm not saying this about her friends to judge them or disrespect and disregard them, but the fact still is that with every union there comes its own challenges and there seems to be more when it has to do with two people with two different values in life, cultural understanding and beliefs working tirelessly to make it own.

 

Anyway, the major dilemma is like I said I know she has the form and she hasn't filed it, I know she's probably hoping to hear from USCIS soon about her letter and I know we still love ourselves so much. But, I don't know if to force her to file the divorce, I don't want to petition the divorce because if I say I love her and I really do, I shouldn't be the petitioner is what USCIS might hold against me as there is any abuse whatsoever.   

Edited January 23, 2019 by shynepapin

[Ontarkie 13,918]

~~One post removed as requested by poster~~

[mindthegap 2,535]

20 minutes ago, shynepapin said:

I don't want to petition the divorce because if I say I love her and I really do, I shouldn't be the petitioner is what USCIS might hold against me  

Doesn't matter who files for divorce.

 

Taken from 8 CFR 16

 

" (2) Good Faith, Not at Fault .

Despite the best intentions, marriages do not always work out, and sometimes even bona fide marriages fall apart in less than 2 years. IMFA was not meant to be a tool to be used against unlucky or unlikely marriages; it was meant to be a tool against fraud. Accordingly, IMFA provides for a waiver if the alien can establish that he or she entered the marriage in good faith and he or she was not at fault in failing to meet the IMFA requirements. Things to consider when adjudicating this type of waiver include :

·     Weight is not given to who filed the divorce. (Initially, the statute required that the alien had to be the moving party in the proceedings to terminate the marriage (i.e., that the alien had terminated the marriage for “good cause”). This occasionally resulted in what became known as “the race to the courthouse.” Since the issue was meant to center on whether the alien had good faith when immigrating, not on whose attorney could file for divorce faster, this requirement was dropped.)"

Edited January 23, 2019 by mindthegap

[mushroomspore 3,043]

25 minutes ago, shynepapin said:

 

Anyway, the major dilemma is like I said I know she has the form and she hasn't filed it, I know she's probably hoping to hear from USCIS soon about her letter and I know we still love ourselves so much. But, I don't know if to force her to file the divorce, I don't want to petition the divorce because if I say I love her and I really do, I shouldn't be the petitioner is what USCIS might hold against me as there is any abuse whatsoever.   

USCIS doesn't care who did what during the divorce. They only care you provide proof it is final and can honestly answer questions about the divorce if asked. And what "form" are you referring to when you say your ex "has the form and she hasn't filed it"? If you are talking about her letter, then that's not an official form and she will hear nothing because her letter does nothing.

[shynepapin 4]

8 minutes ago, mushroomspore said:

USCIS doesn't care who did what during the divorce. They only care you provide proof it is final and can honestly answer questions about the divorce if asked. And what "form" are you referring to when you say your ex "has the form and she hasn't filed it"? If you are talking about her letter, then that's not an official form and she will hear nothing because her letter does nothing.

 

I'm talking about the divorce petition packet.

Edited January 23, 2019 by shynepapin

[Illiria 980]

17 hours ago, shynepapin said:

I don't want to petition the divorce because if I say I love her and I really do, I shouldn't be the petitioner is what USCIS might hold against me as there is any abuse whatsoever.   

They really don’t care who files for the divorce. They will not hold it against you if you are the one to file for divorce.

 

You have already filed for removal of conditions so all you would do is at your interview tell them you wish to change to a divorce waiver and if the divorce certificate has been received give them a copy or if you have not received the divorce certificate yet they would tell you to send it once you do have it. So long as you have evidence you entered the marriage in good faith then you are all good. 

[nastra30 1,992]

Lol. She can't withdraw the I-864; writting a letter won't do anything as far USCIS is concerned. Even in divorce, the I-864 will still be her baby.

[Ryan H 3,791]

***Off-topic and derailing posts removed; confine your replies to answering the OP's questions about their situation or do not post.***