Marriage breaking down prior to filing I751

[ROC2021 0]

I am posting as I need advice regarding my current situation as I prepare to file for ROC based on marriage to a US citizen.

 

I have been married for 3 years now but this year has been particularly difficult for my spouse and I. Simply put, our relationship has been rocky as of late and I feel that a divorce is inevitable. I don’t want to get into the finer details but there are issues relating to mental health, intimacy, and agreements on starting a family.

 

This brings me to my predicament – with the early filing window for ROC coming up in the next month, I am confused on whether I should file jointly, or file as separated then file for divorce and send in the divorce decree when I receive an RFE.

 

My additional problem is that in NY, a no contest divorce requires an irretrievable breakdown of the marriage for 6 months – since I am looking at filing for divorce now, I am not sure if it will be possible to get a divorce decree in time for an RFE as I would need to wait 6 months to be eligible for a no contest divorce. Is there a solution to this?  Am I correct in thinking that I would need to file jointly then adjust the petition later on once the divorce is finalized?

[Crazy Cat 41,982]

You could file a joint I-751...assuming your spouse will sign it...then change to a divorce waiver as soon as you get a divorce decree or at the interview (whichever is earlier).....if that is the situation then.

Edited September 15, 2021 by Crazy Cat

[Crazy Cat 41,982]

If you file with a divorce waiver now, you WILL get an RFE, and you WILL be required to submit a final divorce decree quickly.  That could result in a denial and the need to submit another I-751.

Edited September 15, 2021 by Crazy Cat

[Mike E 11,741]

19 minutes ago, ROC2021 said:

I am posting as I need advice regarding my current situation as I prepare to file for ROC based on marriage to a US citizen.

 

I have been married for 3 years now but this year has been particularly difficult for my spouse and I. Simply put, our relationship has been rocky as of late and I feel that a divorce is inevitable.

File for divorce now.  
 

Prepare an individual I-751 petition that includes evidence of pending divorce.  
 

Wait until say 10 days before your green card expires and then file I-751 with using USPS priority mail.  
 

When you get the RFE for the final divorce decree,  Because you maximized gap between filing divorce and filing I-751, you might have the decree in hand. If so, respond to the RFE.
 

If not, again because the gap was maximized, the decree might arrive before the RFE. deadline.  If so great.  
 

If not, wait for the notice to appear.  I would hire a lawyer at that point.  If you have the divorce decree before your hearing, you should be fine.  Otherwise a lawyer will advise you on how to stay in the USA, presumably by re-filing I-751.  

Edited September 15, 2021 by Mike E

[da95826 387]

Sorry about your marriage, a couple of points: a devorce waiver i751 application can be filed at any time they are not subject to the 90 day window before green card expiration required for a joint i751 application, so you could wait awhile to file closer to your devorce decree being available.

 

I believe USCIS will give you time to produce a devorce decree if you submit proof you have a devorce underway; you are unlikely to get an RFE within 6 months especially if you indicate in the i 751 waiver application when you expect your decree to be available.

 

You could file after your green card expires waiting for the device decree. You would have a gap in proof of your LPR status, don't wait too long you may get USCIS attention and go to immgration court, some i751 applicants are years late and still ok to file so waiting a couple months to file i751 waiver is likely okay.

 

You can convert a joint i751 application to a i751 devorce waiver case with a letter mailed to the USCIS office handling your case or at an interview assuming you can file a joint application with your spouse.

[SoCal2021 201]

2 hours ago, ROC2021 said:

I am posting as I need advice regarding my current situation as I prepare to file for ROC based on marriage to a US citizen.

 

I have been married for 3 years now but this year has been particularly difficult for my spouse and I. Simply put, our relationship has been rocky as of late and I feel that a divorce is inevitable. I don’t want to get into the finer details but there are issues relating to mental health, intimacy, and agreements on starting a family.

 

This brings me to my predicament – with the early filing window for ROC coming up in the next month, I am confused on whether I should file jointly, or file as separated then file for divorce and send in the divorce decree when I receive an RFE.

 

My additional problem is that in NY, a no contest divorce requires an irretrievable breakdown of the marriage for 6 months – since I am looking at filing for divorce now, I am not sure if it will be possible to get a divorce decree in time for an RFE as I would need to wait 6 months to be eligible for a no contest divorce. Is there a solution to this?  Am I correct in thinking that I would need to file jointly then adjust the petition later on once the divorce is finalized?

I am sorry about your marriage challenges.  I read some of the good responses which were posted and they all are great advices.  However, if you can afford it, I honestly think your best bet is to contact an immigration attorney soon to make sure you are doing this the right way.  At a minimum pay for an hour of attorney's time and let him/her tell you all your options.

[da95826 387]

By the way, If you plan on filing a joint i751 with your spouse, file for your devorce well after your file the joint i751 petition, do not file a joint i751 if you already have a devorce pending or about to file for devorce you should wait a couple of months at least to file for devorce or to start a legal separation.

 

Best to file a i751 devorce waiver since you separated already.

 

I would not advise to file a joint i751 petition if you are already in devorce proceedings or in legal separation.

[Demise 1,299]

I will also add one thing, as a (former) fellow New Yorker. The no fault ground of divorce (irretrievable breakdown of marriage for 6 months) is not a waiting period. It's merely a time requirement for how long the marriage has been shot for before you filed (and judging from your post, it's been a mess for a long time), rather than something like you physically split for 6 months before you can file.

 

Something like abandonment is basically a waiting period. Spouse walked out the door and you have to wait 1 year to file for that.

Edited September 16, 2021 by Demise

[Timona 4,207]

12 hours ago, Mike E said:

File for divorce now.  
 

Prepare an individual I-751 petition that includes evidence of pending divorce.  
 

Wait until say 10 days before your green card expires and then file I-751 with using USPS priority mail.  
 

When you get the RFE for the final divorce decree,  Because you maximized gap between filing divorce and filing I-751, you might have the decree in hand. If so, respond to the RFE.
 

If not, again because the gap was maximized, the decree might arrive before the RFE. deadline.  If so great.  
 

If not, wait for the notice to appear.  I would hire a lawyer at that point.  If you have the divorce decree before your hearing, you should be fine.  Otherwise a lawyer will advise you on how to stay in the USA, presumably by re-filing I-751.  

 

Since they are divorcing, can:

 

1. File for ROC before 90 day window opens and without the final divorce decree? ( 2 questions here)

2. Answer part 1, Question 13. Do they leave it blank and just supply evidence that they filed divorce?

3. And are they gonna choose 1.d in Part 3 & 1.a in Part 4?

[mindthegap 2,590]

3 main options for you. 

 

1) File jointly (if your spouse is willing to sign)

Switch to a divorce waiver later down the line.

This has potential drawbacks, including depending on how vindictive your spouse is likely to be, and also if it was clear you were divorcing you may be asked why you filed jointly during/after filing for a divorce. 

 

2)

Prepare a waiver filing package.

File as late as possible before expiry of your current card - I mean by FedEx overnight so it gets there like a day or two before expiry. 

Hope that the divorce is finalised before you get an RFE and the RFE period (circa 90 days) expires. If it does expire, it isn't the end of the world, just potential refile expenses. 

 

3)

Prepare a waiver package.

Do nothing and wait until divorce is final or close to being final (ie, you know when it will be). Possible denial letters may appear if your 2yr card has expired - you remain a LPR in the meantime.

As soon as it is final, add a copy of the final divorce paperwork to package and send, or send the final one if you filed when knowing the final date.  This will be past the expiry of your card, and outside of the 90 day period. Do not worry - waiver filings are expressly permitted at any time. Only joint filings are required to be in the 90 day window.

It will be accepted and not classed as 'late' and will proceed as normal. 

 

 

 

I would go with option 3 personally....but then I have more knowledge and experience than most of how the (possible) denial process works.

 

 

 

Edited September 16, 2021 by mindthegap

[Mike E 11,741]

5 hours ago, Timona said:

 

Since they are divorcing, can:

 

1. File for ROC before 90 day window opens and without the final divorce decree? ( 2 questions here)

The implication of https://www.uscis.gov/sites/default/files/document/memos/i-751_Filed_ Prior_Termination_3apr09.pdf is yes.  
 

And get the RFE sooner and thus more likely get an NTA, and a removal trial.  I will never recommend a strategy that accelerates RFEs and makes trial more likely.  
 

Might just be me, but I find letters from USCIS telling me to leave the country or face removal to be scary.  I find the idea of ICE detention to be scary.  

 

Quote

2. Answer part 1, Question 13. Do they leave it blank and just supply evidence that they filed divorce?

This question is the date marriage ended.  The marriage has not ended. Entering a date would be false.  I will never advise putting false, misleading and possibly perjurious data in a document filed with the US government.  
 

Quote

3. And are they gonna choose 1.d in Part 3

1.d says the marriage ended in divorce.  As implied by https://www.uscis.gov/sites/default/files/document/memos/i-751_Filed_ Prior_Termination_3apr09.pdf 1.d is the correct box.  

Quote

 

& 1.a in Part 4?

Well 1.a is “spouse or former spouse”

 

1.b is “parent’s spouse or former spouse”

 

OP is the spouse of petitioner. So it is  1.a.  
 

The other option being proposed in this thread: don’t file until you have a divorce decree is high risk as you no longer have proof of authorized presence for travel, work, state ID/DL, and internal DHS check point purposes.  Again I don’t like the idea of being in ICE custody.  And I don’t like the idea of being unable to work, drive, or travel.  
 

And I find the idea of an outright denial because I-751 was filed after the green card expired to be petrifying.  

Edited September 16, 2021 by Mike E

[arken 4,197]

There is no deadline to file i751 if are in the process of getting divorced. Once the divorce is final, file i751. Don't go around kicking people butts triggering cops' attention till then.

[mindthegap 2,590]

6 hours ago, Mike E said:

The other option being proposed in this thread: don’t file until you have a divorce decree is high risk as you no longer have proof of authorized presence for travel, work, state ID/DL, and internal DHS check point purposes.  Again I don’t like the idea of being in ICE custody.  And I don’t like the idea of being unable to work, drive, or travel.  
 

Utter, complete rubbish.

At all times you remain a LPR, and are expressly entitled to a stamp as proof of status, and there is absolutely no change in your eligibility of work or travel. 

How do I know? I've had two denials, yet continue to have stamps, work, travel, and renew my drivers license. 

This is the law. It is fact.

 

You will not end up in ICE custody. You just won't. That could potentially happen after a hearing with an immigration judge with a final order of removal issued, where you would no longer be a LPR. That is an entirely different scenario.

 

 

6 hours ago, Mike E said:

And I find the idea of an outright denial because I-751 was filed after the green card expired to be petrifying.  

 

Again, it isn't an outright denial. It is a possible denial letter (depending on how fact they do it) for failure to file. That is not an outright denial. How can it be a denial if nothing was filed to deny?

You can file at ANY time with a divorce waiver - it even states this very clearly on the instructions:

 

 

Edited September 16, 2021 by mindthegap

[Allaboutwaiting 2,503]

10 minutes ago, mindthegap said:

How do I know? I've had two denials, yet continue to have stamps, work, travel, and renew my drivers license.

And how are you doing, how is your case going?

Hope things are moving forward. 

[Ontarkie 14,282]

~~Thread moved to Effects of Major Family Changes, from ROC - as similar threads are discussed here~~