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Suha Byford

Divorce Waiver / Missed RFE Deadline

By Suha Byford in Removing Conditions on Residency General Discussion

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Suha Byford Newbie

Suha Byford   0

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Hello, I filed an I-751 with divorce waiver in August, 2021. I had my appointment in early April. I did not have my divorce waiver at the interview and explained that my divorce is not final. After the interview I received a letter stating that I need to provide my divorce decree. My ex is making the process the very difficult. Missed the RFE deadline. Just found out that I can get a bifurcation, but that can take a couple months. I'm very scared and my lawyer is not giving me very much info. Will I get another RFE? Will I be denied? What happens next?

 

Suha

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Timona Experienced

Timona   3,953

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Filed: Citizen (apr) Country: Kenya
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First mistake was to file with a divorce waiver WITHOUT having the divorce certificate in hand. I always advise to file normally then update later. Or file with a divorce waiver if you're sure that give or take, your divorce will be done in 3 months total. That could mean you already initiated the divorce and a lot of time has passed. However, the hindsight to this is you may reconcile yet your file was already send with "divorce waiver option." So, you either go this route when you're 100% sure you're not reconciling but if you're not sure, file normally. 

 

Well, I guess you have to reply to your RFE. If you don't by the due date, ROC will be denied. You will have to file afresh when divorce certificate is in hand, pay, wait another 1.5 years. 

Immigration journey is not: fast, for the faint at heart, easy, cheap, for the impatient nor right away. If more than 50% of this applies to you, best get off the bus.

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Villanelle Experienced

Villanelle   4,121

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USCIS can only hold your case for so long. They need the divorce decree to approve you. 

 

So what happens now? Technically USCIS should deny your 751 because you don't have the decree and send your case to the court. You will get a notice when or if they do this. There is then various steps you would take but I am not going to go through them all because it hasn't happened yet and might not happen. 

 

You need to cross your fingers and hope the local office holds your file and waits for your decree a bit longer and doesn’t send it to the court. Your attorney can send a letter basically begging them to have compassion and stall a bit on their side in not closing your case in their system.  Its a courtesy they can do but are not under any obligation to.  USCIS doesn't want to add to the courts backlog so theres a good chance they will hold it a bit longer than they are required to. 

 

But if they don't hold it, its OK. You won't lose status.  You will just have to navigate out of the court system once the decree is in hand. And more information can be provided about how to do such if needed. 

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mindthegap Experienced

mindthegap   2,537

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Filed: Lift. Cond. (pnd) Country: United Kingdom
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And here lies the problem with filing as a divorce waiver without the final divorce in hand, or it being imminent/known timescale. People don't realise/overlook/forget that with a divorce waiver you don't need to file in the 90 day window, which is a requirement for joint filings only.

 

Not sure if there is still a covid extension for RFE responses, but absent that, you will in all likely receive a denial letter at some point. When the divorce is final, you simply refile (yes, you have to pay again), as a divorce waiver, this time enclosing a copy of the final divorce. 

 

Edited by mindthegap

CR1 / DCF (London): 2012 / 2013 (4 months from I-130 petition to visa in hand)

I-751 #1- April 2015 [Denied]

 

April 2015 : I-751 Joint filing package sent fedex next day 09:00am from UK ($lots - thanks). 
Jan 2017: Notification that an interview has been scheduled at a local office. Bizarrely still no RFE... 
Jan 2017: 2hr wait, then interview terminated before it began, due to moving my ID to another state 2 wks prior. New interview 'in a few months...maybe.'   Informed them that divorce proceedings are underway, but not finalised at this time. 
March 2017: An Interview was scheduled - marked as no-show as they didn't actually send out a notification of interview. FML 
April  2017: Filed an official complaint with the ombudsman, and have requested Senator & Congressman assistance
August 2017: Interview - switched to a (finalised) divorce waiver. Told that decision will be made that afternoon, but no problems foreseen with my case. 
October 2017: Letter of Denial received - reason given as 'I-751 petition was not properly filed'. Discovered ex-spouse made false allegations to USCIS in 2015. No opportunity given to review & refute allegations  - contrary to USCIS policy.

I-751 #2 - Oct 2017 - Mar 2021[Denied] 

 

October 2017: Within 72hrs of receiving denial notice, a new waiver I-751, divorce decree & $680 cheque, sent to Vermont via FedEx overnight 9am priority.  
Dec 2019: Filed FOIA request for full A# file
Feb 2020: FOIA request completed - entire A# file received as a .PDF; 197 pages fully redacted, and 80 partially redacted. Don't waste your time!
March 2021: I-751 #2 denied for lack of evidence. No RFE, no interview, and evidence in previous I-751 not reviewed - contrary to policy. Huge errors in adjudication.

N-400 - Feb 2018 - Apr 2021 [Denied]

 

February 2018: N-400 filed online.  $725 paid to the USCIS paperwork wastage fund

February  2019: Interview - cancelled after a four hour wait due to 'missing paperwork' on their end. Promised Expedited reschedule.

March 2021: Interview letter received, strangely dated after I-751 denial. No I-751 interview conducted. N-400 interview and test passed, given 'cannot make a decision at this time' paper due to the ongoing I-751 nightmare...

April 2021: N-400 denial received citing recent I-751 denial as basis for ineligibility, even though it should have been a combo interview 🤯

I AM JACK'S COMPLETE LACK OF SURPRISE

Service Motion - March 2021 [Sent via FedEx & COMPLETELY IGNORED by USCIS]

 

March 2021: Service Motion request sent overnight addressed direectly to field office director, requesting urgent review and re-opening, based on errors in adjudication - citing USCIS policy, AFM and memorandums as basis for errors. This was completely ignored by USCIS.

 I-751 #3 - June 2021 - Jan 2024 [Denied]

 

IT'S GROUNDHOG DAY

June 2021: I-751 #3 (30+lbs/5000 pages of paperwork) & another $680 sent to USCIS via FedEx ($300+..thanks) .... 

June 2021: Receipt issued, card charged, biometrics waived, infopass scheduled for I-551 stamp number ten.....

Feb 2022: RFIE (no, not an RFE, a Request For Initial Evidence) received, for copies of the divorce paperwork that they already have 😑

July 2022: Infopass for I-551 stamp number eleven.....

August 2023: Infopass for I-551 stamp number twelve....

January 2024: Denial received, ignoring the overwhelming majority of the filing, abundance of evidence, and refutation of a provably false allegation. The denial also contradicts itself in multiple places, as if it was written by someone with an IQ <50.

HAPPY NEW YEAR

 

2024: FML. Seriously. I'm done. 

 

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Mobius1 Explorer

Mobius1   175

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On 7/30/2022 at 1:31 AM, Suha Byford said:

Hello, I filed an I-751 with divorce waiver in August, 2021. I had my appointment in early April. I did not have my divorce waiver at the interview and explained that my divorce is not final. After the interview I received a letter stating that I need to provide my divorce decree. My ex is making the process the very difficult. Missed the RFE deadline. Just found out that I can get a bifurcation, but that can take a couple months. I'm very scared and my lawyer is not giving me very much info. Will I get another RFE? Will I be denied? What happens next?

 

Suha

Situations like yours, like mine, and others involving i751 / divorce are in a gray area where the guidance is not crystal clear and on purpose when the divorce is not final. 
 

Even the lawyers are split on this. A camp firmly believes in the waiver only when you have the decree. Another files for waiver as soon as other party files for divorce (which I feel is troublesome). Why? A couple may file for divorce and then chose to cancel it. Your waiver request with Uscis may or may not  cancel though but definitely will put you in hot water.
 

However, you may be able to get more time by submitting through your lawyer a timeline of progress in your divorce process. Once you have a mediation, that gives you a good timeframe of divorce getting finalized (1-2 months).

 

Lastly, if all else fails, you will be put in deportation but still you have a good chance here. Your LPR is only canceled by am immigration judge. They have no reason to deny your i751 waiver request provided it was a legitimate marriage and you have the final divorce with you will definitely have by the time your hearing takes place.

 

Good luck, stay strong, it’s not over yet.

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