I751 approved while divorce pending....should I apply for N-400? [merged threads]

[lovelywaves 3]

Hi all,

 

I have so much anxiety about my case. All the research I have done has shown me conflicting information. I realize that this situation is part of a legal loophole or gray area. 

 

I was in an abusive marriage with my spouse. We filed for I751 in January 2019. After being mentally abused for years and cheated on, I could not stay with him anymore and filed for Divorce in May 2019. I have changed my address with USCIS 10 days after moving out. 

The lawyer I had seen at the time told me to wait to inform USCIS of pending divorce until I get my decree or get RFE, due to divorces taking a long time in California.

 

I was approved for my green card without a RFE or Interview while the divorce was still pending. 10 months after receiving my permanent green card, my divorce was finalized.

 

I now realize that I should have converted to a divorce waiver. However, I followed the advice I was given and I cannot change back time. 

 

I am legible to apply for N-400 but I am terrified. Everything I read is conflicting. I have spoken to two different lawyers who told me that it should not be a huge issue since I was still legally married when the I751 was approved. However, I am very wary of what lawyers have to say at this point. I really want to apply for N-400 but I don't know if I should. 

 

Timeline: 

January 2019- applied for Joint I751.

May 2019- Filed for Divorce, moved out, changed address with USCIS.

February 5th 2020- Received Green card. No RFE or Interview

December 2020- divorce finalized.

 

 

[Crazy Cat 41,979]

You can now file under the 5 year rule.  I see no reason to be terrified.  

[lovelywaves 3]

1 minute ago, Crazy Cat said:

You can now file under the 5 year rule.  I see no reason to be terrified.  

I saw many cases saying that because I never notified USCIS of the divorce being filed, I might have problems. 

[Verrou 1,962]

when you filed n-400 under 5 years rule, it shouldnt be a problem. problem occur if you file under 3 years ( marriage), which you didnt.

Edited August 25, 2022 by Misscloud

[Mobius1 175]

Dear Lovelywaves, 

 

Don't be terrified. I went through the same situation as you. I wish to save you the anxiety, countless hours, and high bills that I have spent/ paid to come to this conclusion, speaking to not only to 10 actual lawyers but also a former USCIS IO about this grey area.

 

The direction in such particular situation is not clear and perhaps on purpose. Legally speaking you are married until the judge signs the final paper. Legally speaking you are unable to apply for waiver unless you have the decree. 

Only if you are called in for an interview and your soon to be ex doesn't show up, IO asks for your situation, under oath you have to be truthful and inform of a pending divorce.

 

You have not lied anywhere since no interview took place, hence no misrep which essentially is your fear. As per former IO I asked, "Its on them, since they did not take an interview".

 

Don't live a life of constant fear, file that N400. Don't let the misinformed forum posters scare you.

 

During your N400 interview, at best the IO might ask you why you filed for divorce. 

 

TLDR = ITS NOT AN ISSUE, FILE THAT N400

[lovelywaves 3]

I was in an abusive marriage with my spouse. We filed for I751 in January. After being abused for years and cheated on, I could not stay with him anymore and filed for Divorce in May. I have changed my address with USCIS 10 days after moving out. I was waiting to notify USCIS of the divorce once I had my decree.

I was approved for my green card without a RFE or Interview while the divorce was still pending. 10 months after receiving my permanent green card, my divorce was finalized.

 

I am eligible to file for N-400 after 5 year rule. However, I am considering not doing it due to my situation. I have heard conflicting reports. Has anyone been in this situation or heard about it. What was the result?

[Mike E 11,740]

Failure to notify USCIS that divorce proceedings were in progress is not good and you should consult with a lawyer now. 

[lovelywaves 3]

12 minutes ago, Mike E said:

Failure to notify USCIS that divorce proceedings were in progress is not good and you should consult with a lawyer now. 

I have and they said it shouldn't be an issue. But a lawyer was the one who told me to not notify them until I had decree. So idk who to trust anymore. 

[OldUser 6,860]

You should consult another lawyer, now that your circumstances changed.

 

It looks like the first lawyer did not do a good job estimating when your case was going to be approved VS when divorce was going to be finalized. 

Edited January 18, 2023 by OldUser

[Mike E 11,740]

3 minutes ago, lovelywaves said:

I have and they said it shouldn't be an issue. But a lawyer was the one who told me to not notify them until I had decree. So idk who to trust anymore. 

Wow.  Well ask that same  lawyer about whether to file N-400 under these circumstances. Sounds like the answer will be yes.  Let us know how it goes. 

[lovelywaves 3]

3 minutes ago, OldUser said:

You should consult another lawyer, now that your circumstances changed.

 

It looks like the first lawyer did not do a good job estimating when your case was going to be approved VS when divorce was going to be finalized. 

I have consulted multiples who have told me they don't think it should be an issue and to file N-400

[lovelywaves 3]

1 minute ago, Mike E said:

Wow.  Well ask that same  lawyer about whether to file N-400 under these circumstances. Sounds like the answer will be yes.  Let us know how it goes. 

I have. 

He said "it could be an issue but he cannot predict."

[Mike E 11,740]

26 minutes ago, lovelywaves said:

I have consulted multiples who have told me they don't think it should be an issue and to file N-400

 

25 minutes ago, lovelywaves said:

I have. 

He said "it could be an issue but he cannot predict."

These two replies contradict each other.  
 

Well I can predict.
 

And mine is it will be  an issue.  
 

I predict:

 

* At the interview, the ISO will see that you filed for divorce while a joint I-751 filing is in progress 

 

* The ISO won’t find anything in writing from USCIS that says:

 

35 minutes ago, lovelywaves said:

they said it shouldn't be an issue

* if you have something in writing from USCIS that says “it shouldn't be an issue” then I predict that ultimately you will prevail. 
 

* otherwise I think best case your N-400 case goes into a lengthy review 

 

* worst case a denial because USCIS will claim you should have switched I-751 to a divorce waiver filing 

 

* worster case recission of your 10 year gc and you file I-751 again, this time under a divorce waiver 

 

My impression is that  The Immigration Reform and Control Act of 1986 that forced INS to introduce I-751 hasn’t provided a lot of guidance to INS and now USCIS on your situation.
 

The infamous Neufeld memo (https://www.uscis.gov/sites/default/files/document/memos/i-751_Filed_ Prior_Termination_3apr09.pdf ) comes the closest to your situation. And if you read between the lines, you were expected to inform USCIS that you were divorcing. If you did, then legally you are good to go.  But if you did inform USCIS  over the phone to a tier 1 (aka a pail of rocks) officer, you will have trouble proving it.  

 

 I think if you are willing to spend the money  on the legal fees, you will win.  
 

If you want to be a citizen you’ve no choice but to try to file N-400.  
 

If you plan to petition a relative for a green card, I would file N-400 so that you get ahead of this issue now versus your relative getting N-400 denied when the ISO reviews your I-751 file. 

 

Edited January 18, 2023 by Mike E

[Family 4,025]

Same timeline and identical details as this post/ poster. 
 

 

[Mike E 11,740]

4 minutes ago, Family said:

Same timeline and identical details as this post/ poster. 
 

 

I missed the part where flowergirls  took oath of citizenship.  Mr Neufeld is not amused.