Interview scheduled but separated after joint filing I751

[Noi3125 1]

I have read through many old posts but haven't found quite what I am looking for... please advise. 

Entered on K1 in late 2016. Married in early 2017. Turned out to be a difficult marriage, USC wife had told many lies. Filed I-751 in late 2019 at the time of filing found out that spouse was not filing taxes jointly and some other hurtful things were revealed. I-751 was filed jointly. From then until March 2020 marriage continued to deteriorate and Mar 2020 separated. Nothing was formalized legally. Spouse didn't want to do paperwork. Everything was so backed up with USCIS didn't really think about the separation and the pending application at the time. NOW- end of April 2021 called USCIS to get update and found out an interview is scheduled for May 24, 2021 (notification had been mailed to spouse who decided maliciously not to pass it on).  (ex)Spouse is just now agreeing to drafting divorce papers. Nothing has been filed or finalized yet. (ex)Spouse refuses to attend interview. 

Based on what I have gathered so far what needs to be done is that a new I-751 needs to be filed as an amendment with a cover letter explaining the situation and sent to the field office where the interview is scheduled (Chicago). Is this correct? Is the waiver filled out on the basis of divorce although the divorce hasn't even been filed for let alone finalized? What should the cover letter say? What evidence should be included in this amendment?

Then the immigrant should plan to attend the interview (alone) scheduled for May 24th.  What should be prepared for the interview? There is evidence of the marriage being bona fide, there are also text messages about the toxic situation from (ex)spouse, there is also a video of (ex)spouse suggesting immigrant file taxes as single to get more money. Should any of this be prepared? Should the initial draft of divorce papers be prepared? Should any affidavits or anything like that be prepared? Unfortunately there isn't much time to put much preparation. 

 

PS my post and timeline don't match up because I am posting on behalf of a dear friend who is so distraught that they cannot navigate all of this right now. 

[Villanelle 4,121]

It is very nice of you to attempt to help your friend like this but its better if they participate in the conversation. If they do not have a VJ account encourage them to make one and join this thread.

 

The first and most important thing- HE MUST ATTEND THE INTERVIEW. He will go by himself and at the initial intake when you check in they will ask about why the spouse is not present in the waiting room (as she is suppose to be there). He just needs to advise them he is separated and needs to switch to a waiver 751 as the wife will not be attending. Now if for some reason the wife does show up (to make trouble or otherwise attempt to interfere) he should not attempt to speak with her directly. He just needs to advise the worker at the desk in the waiting area or security guard of her presence and she will be removed. They will not conduct a joint interview once they know he is switching to a waiver. This is a scenario where you have to trust the system works and its not his responsibility to remove her from the office or ask her to leave. They will handle it.

 

 So he checks in for his interview and advises them his wife wont be attending because they separated and he needs to switch to a waiver. Once he is brought in to be interviewed they will want to know which waiver he is switching to. So which waiver or waivers is he switching to? When you switch to a waiver you do not need to fill out (or pay) for a new 751. They can make changes to it. Sometimes you have to sign a paper on the changes you are asking for other times they make the changes based on your verbal consent to do such.  

 

If he requests to switch to a divorce waiver then they will need the divorce decree to approve him. He will not have that so the Officer will conduct his interview and most likely will issue him a RFE for the decree as well as any additional proof of bonafides if they are not satisfied with what he already submitted and his answers in the interview. He most likely will not have the decree in time if the wife is contesting the divorce. Thats OK. USCIS will technically have to deny him as they can not approve him w/o the decree. He does not lose his LPR status. Its best described as a 'soft denial", meaning USCIS denies it in their system but it doesnt actually get officially denied until a Judge says so. So USCIS issues their soft denial and a NTA for court will be issued. 

 

Now heres the thing. Courts are slow and extremely backed up. The general goal is to try to avoid getting entered into the court system because once you are entered in you must get your case out. Typically it is advised to hire an attny to help you navigate the court system as it can be complicated and hard to navigate on your own. 

 

There are many variables that can impact how things will happen so I will try to go over as much as I can with out making it too confusing. So going back to the scenario where he gets an RFE and knows he wont have the decree to send back in time. He would respond to the RFE stating he does not have the decree yet. From USCISs side- they will get his RFE and process it. That can take 30-90 days. They would then have to issue their soft denial. He would get a letter that can be very scary as it doesnt say this is a soft denial and everything will be Ok but rather a strongly worded letter implying he was denied and is going to be sent to court. Thats just the way the letter is worded but again its OK. Then USCIS needs to forward his case to the court. So there is a period of time in which he will be in limbo. Where he was issued a soft denial from USCIS but the case was not sent to court. This is important because he will want proof of his LPR status (as most likely any extension letter from his original ROC filing has since expired). USCIS can give him a stamp showing he is an LPR after they issue their denial but only after a NTA for court has been issued. In that limbo period where the soft denial was issued but it hasnt been sent to court they can not give him a stamp. 

 

Now the recommended strategy is to send a second 751 asap. Most people are unaware but the 751 allows you to file it as many times as you want. Each 751 case moves on its own. So if he files a second 751 he will get a NOA for it. He can use that NOA to get a stamp and prevent any gaps in having proof of status while the original 751 goes through the process of the soft denial and being sent to the court. He would send the second 751 to the address the instructions dictate- not directly to the local office. He will have to pay the fees for it as well. 

 

Then he will have two 751 cases pending. Think of them as two separate trains. They will each move forward independently of each other. But again if one of the trains gets involved in the court the court must release it back. Often USCIS will issue a soft denial and then hold the case and not promptly send it to court. This is because they know the courts are backed up and if you have a second train already in motion in theory you can be approved with the second filing before the court would even get to looking at the first one. But theres no requirement for them to hold your first case. Sometimes they promptly send it to the court. You can not control any of that, you just need to do what needs to be done based on what is required. So if the first case is sent to the court you have to deal with it. 

 

Now the Judge can not adjudicate 751s. They simply review the denial USCIS presents them with and either upholds it making it official or they send it back to USCIS to be looked at again (because you now have the divorce decree). Sending things back to USCIS - or having them reopen a case is a slow process so again its recommended to have filed a second 751 so that there is an active 751 at USCIS when the Judge directs them to look again at it. USCIS does not have to reopen your original 751, they can approve your second filing instead once the Judge 'removes the freeze' that was placed on  you being entered into the court system. Does that make sense? 

 

Ideally one would be given a soft denial by USCIS and either they promptly filed a second 751 afterwards or did so before the soft denial and USCIS also graciously holds off on sending you to court and is able to approve your second filing and you are able to avoid the court system all together. If that doesnt happen and USCIS does move forward with sending you to court as explained you need to navigate yourself out of the court system and an attny is usually recommended to do such. 

 

Now if he is seeking to use the abuse waiver he does not need to be divorced. He would need to show proof of bonafide marriage + proof of abuse. Here is a link to a sample RFE for the abuse waiver and what would be required to establish abuse.- https://www.olender.pro/sites/default/files/Conditional Residence - Sample I-751 Request for Evidence.pdf  Does any of that apply to him? If so he can request to switch to the abuse waiver and bring the evidences with him to the interview. He does not need to show a divorce decree to be approved under abuse waiver. 

 

[HappyAndIKnowIt 24]

On 5/1/2021 at 12:09 PM, Villanelle said:

 

 

In that limbo period where the soft denial was issued but it hasnt been sent to court they can not give him a stamp. 

 

 

 

Excellent post.  I just want to put out there that my ex-wife, with my help, was able to get a temporary I-551 after the I-751 denial, but before the NTA was issued.

[Noi3125 1]

I am unfamiliar with and I-551. Can you explain?

[Noi3125 1]

UPDATE: 

he attended the interview. The IO initially refused to see him because his spouse was not there but then agreed. She collected some things he had brought with him (specifically copies of written communication). 
meanwhile the divorce was filed and a court date set.

UNFORTUNATELY, while awaiting the divorce hearing he received a NOID. It was quite long and there were some gaps in the evidence (mostly that there was not much evidence of co mingling of finances… this was one of the ways she was manipulative and controlling). There was also a mistake on the tax returns which had been prepared by a tax preparation company. 
anyway his response to the NOID is due next week. 
Meanwhile, his ex agreed to submit a letter with additional evidence if he paid her some huge amount to compensate for the time he couldn’t work when he initially arrived and the money spent on immigration. He has collected addition affidavit from neighbors testifying that he did in fact live with her and was faithful & invested as a husband. 

He is preparing his response to NOID and does not feel he can afford a lawyer. 
Any words of wisdom (aside from getting a lawyer?). He plans to file a second I-751 when the divorce papers come. 

Just prior to his arrival she was involved with the law (there are newspaper articles about it) is there any benefit of including this information with the response. 
 

Have a letter from the tax preparer noting the mistake they made. Have paystubs with the shared home address. No further evidence of mingling of finances. Have additional photos/cards/communication which covers more of the time they were together. Have a letter from employer about life insurance beneficiary. Any other thoughts? When he left her home he didn’t take much with him. He was not even considering immigration at the time just his well-being. 
 

thanks!

[HappyAndIKnowIt 24]

1 hour ago, Noi3125 said:

I am unfamiliar with and I-551. Can you explain?

I-551 is the green card.  A temporary I-551 is basically the green card, but on paper as they prepare it on the spot.  Same effect as the stamp.  My ex-wife's passport wasn't available for a stamp.