Separation during I-751 Process

[OldUser 5,138]

16 minutes ago, Timona said:

Technically, he's still married. So, nothing to do. 

 

We've had these cases here on VJ

Every change of address requires AR-11 whether GC holder is single, married,, separated, divorce or widowed. It's not tied to I-751.

[beloved_dingo 1,941]

How to handle these situations is regularly a topic of debate and discourse here because separating from your spouse puts you in a gray area as far as immigration goes. 

 

Perhaps answering a few questions can shed some light on the best advice for you:

1. Is the relationship definitively over? Or are you both willing to work on the relationship (therapy, trial separation, etc.)?
2. Is there a timeline for when you plan to move out?
3. If the relationship has broken down to this degree, why hasn't divorce been discussed yet? 
4. You aren't sure if your spouse will cooperate with your continued immigration process but would she at least be willing to write an affidavit regarding the validity of your marriage? 
5. Can you get an affidavit from her parents regarding the living situation? (if so, I would do this ASAP before you move and/or they become uncooperative). 

Basically, my take is that if you are both still working on the marriage, then you leave USCIS out of it unless you reach a point of no return and divorce is inevitable. However, you will still have to file the AR-11 within 10 days of moving to a new address. You need to be very proactive to gather every scrap of new and ongoing evidence of your bona fide marriage in the meantime.

 

On the flip side, if your relationship is over and irretrievably broken, it would be best to file for divorce ASAP. How quickly can you get divorced where you live? It varies quite a lot from state to state. You can switch to a divorce waiver.

 

Just so you know, you will almost certainly receive your 10 year green card. Even if the worst case scenario happened, and your jointly filed I-751 was denied, you can refile with a divorce waiver (or with another joint petition, if the relationship improves and the marriage continues). 

 

Something to keep in mind though - you very likely will need to file for citizenship under the 5 year rule instead of the 3 year rule regardless of how this plays out, unless your marriage miraculously recovers and you don't move out. Citizenship is also one reason why you need to be careful/diligent with how the I-751 is handled, because you don't want to be suspected of misrepresentation or fraud. 

[Timona 3,972]

2 hours ago, OldUser said:

Every change of address requires AR-11 whether GC holder is single, married,, separated, divorce or widowed. It's not tied to I-751.

 

I was solely talking about updating I-751 to divorce without the actual divorce decree. 

 

For the address, AR-11 is the way to go as you've mentioned 

[OldUser 5,138]

35 minutes ago, Timona said:

 

I was solely talking about updating I-751 to divorce without the actual divorce decree. 

 

For the address, AR-11 is the way to go as you've mentioned 

I think lawyer the OP is talking to soon can come up with the best strategy.

 

Obviously this path:

Notify USCIS now => Get RFE for divorce decree => OP's divorce not finalized in time => Denial is not good.

But there's a remedy: refile I-751.

 

But the other path is not any better:

Don't notify USCIS just yet => I-751 is approved before divorce is final => Misrepresentation / fraud accusation during N-400 is not any better.

 

IMHO it's better to get I-751 denied than wrongly approved on premise of marital union in bonafide marriage.

 

OP's I-751 has been pending for almost a year now. Surely, most I-751s take close to 2 years nowadays, but there's a risk it get approved sooner randomly.

Edited October 13, 2023 by OldUser

[Family 3,558]

3 minutes ago, OldUser said:

IMHO it's better to get I-751 denied than wrongly approved on premise of marital union in bonafide

There is no “ marital union “ issue in I-751 

The bonafides are rock solid for OP . 
Nothing bad /illegal /iffy /misrep or fraudy will happen if a jointly filed I-751 is approved BEFORE a final divorce decree. No reason to sweat bullets at an N-400 filed under 5 year 

 

This even if an ex turns 50 Shades of toxic . 
 

[OldUser 5,138]

43 minutes ago, Family said:

There is no “ marital union “ issue in I-751 

The bonafides are rock solid for OP . 
Nothing bad /illegal /iffy /misrep or fraudy will happen if a jointly filed I-751 is approved BEFORE a final divorce decree. No reason to sweat bullets at an N-400 filed under 5 year 

 

This even if an ex turns 50 Shades of toxic . 
 

Data point: https://np.reddit.com/r/USCIS/comments/boa88b/basically_forced_to_withdraw_application_at/

 

"He disappears and is gone for 10-ish minutes, apparently talking to a supervisor, comes back and tells me that my I-751 shouldn't have been processed because according to my divorce papers my wife and I separated 10 months prior to the I-751 being finalized, even though the final divorce date was 4 months AFTER that.

Essentially he gives me the option of having my application denied, detained and to go in front of an immigration judge and potential deportation, or "voluntarily" withdraw my application.
I was in complete shock, I've been living here perfectly happy with my 10 year green card not knowing there was some technicality that would prevent me from becoming a citizen, I ask if I can speak to someone else, he says no that he already spoke to his supervisor and that's where the options came from and that he couldn't offer me any kind of advice on the situation. He was extremely rude, blunt and not helpful or sympathetic at all. Pushed a blank piece of paper in front of me with a pen and made me write out that I withdraw my application."

Edited October 14, 2023 by OldUser

[Family 3,558]

3 hours ago, OldUser said:

Data point: https://np.reddit.com/r/USCIS/comments/boa88b/basically_forced_to_withdraw_application_at/

 

"He disappears and is gone for 10-ish minutes, apparently talking to a supervisor, comes back and tells me that my I-751 shouldn't have been processed because according to my divorce papers my wife and I separated 10 months prior to the I-751 being finalized, even though the final divorce date was 4 months AFTER that.

Essentially he gives me the option of having my application denied, detained and to go in front of an immigration judge and potential deportation, or "voluntarily" withdraw my application.
I was in complete shock, I've been living here perfectly happy with my 10 year green card not knowing there was some technicality that would prevent me from becoming a citizen, I ask if I can speak to someone else, he says no that he already spoke to his supervisor and that's where the options came from and that he couldn't offer me any kind of advice on the situation. He was extremely rude, blunt and not helpful or sympathetic at all. Pushed a blank piece of paper in front of me with a pen and made me write out that I withdraw my application."

I appreciate your link and recall same fellow posting on VJ . 
 

He was intimidated into withdrawing his N-400 and Nothing that officer said was true .. 

All that poster had to do is politely ask for a decision on N-400 . There would be NO NTA , NO “ detained  “ . 
Sorry , I am not providing links ..but I am quite confident in my time on this forum there are no  of USCIS initiating recision proceedings in OPs scenario ( or Reddit fellow ). 

There is enough case law and statute on @mindthegap posts and abundant success stories    @Mobius‘ 

 

I appreciate your position @OldUser..but OP will be fine . 

 

 

 

 

 

[Mavus101 0]

20 hours ago, Family said:

I appreciate your link and recall same fellow posting on VJ . 
 

He was intimidated into withdrawing his N-400 and Nothing that officer said was true .. 

All that poster had to do is politely ask for a decision on N-400 . There would be NO NTA , NO “ detained  “ . 
Sorry , I am not providing links ..but I am quite confident in my time on this forum there are no  of USCIS initiating recision proceedings in OPs scenario ( or Reddit fellow ). 

There is enough case law and statute on @mindthegap posts and abundant success stories    @Mobius‘ 

 

I appreciate your position @OldUser..but OP will be fine . 

 

 

 

 

 

Thank you all for your input! It's greatly appreciated, honestly.

 

I have our 1099 joint filings, and our health insurance cards, she is a joint holder on my UK bank account. Oh, and I have around 900 photo's dating back from 2015/2023. I'm sure I can ask the father-in-law to sign an affidavit before all of the chaos ensues. Once I find out my rights on Thursday my plan is to start moving some of my stuff into a storage unit that I have, the wife generally complains about all of the car stuff and tools so, I figured that'd be a place to start storing stuff before we split and I find an apartment in Orlando. It genuinely does hurt after 8 years knowing that we both want different things, I.E I want kids, she does not. She wants to move back to Europe, I do not. But, also how the attitude has changed drastically. Also very scary not knowing what can happen to me as In these nearly 3 years I personally have accomplished a lot... It would be a shame to see that all go to waste. But, from knowing my wife's personality I believe that she would still continue to assist me with the GC as she isn't a bad person or malicious like that, unless I started dating someone else prior to the completion... we just want different things.  Once again, thank you. I'll definitely update this come Thursday.

[Adders321 1]

Sorry to hear about the breakup, from what it looks like you still have a strong case as 8 years is a long time. Keep us updated.

[MJ&YY 127]

On 10/13/2023 at 2:44 PM, Mavus101 said:

I arrived in February 2021

 

got married in the UK in 2018.

Did you not get a 10y green card when you arrived?  Can you file I-90 to replace your card (see end of page 7, top of page 8)?

[JKLSemicolon 333]

11 hours ago, MJ&YY said:

Did you not get a 10y green card when you arrived?  Can you file I-90 to replace your card (see end of page 7, top of page 8)?

Perhaps @Mavus101 made a typo, but since they haven’t completed their VJ timeline it’s hard to tell.

 

@Mavus101, is the Resident Since date on your green card within two years of your marriage date? According to what you wrote in your earlier post (married in 2018 and entered in 2021), you would have been eligible for a 10 year GC.

[Mavus101 0]

2 hours ago, JKLSemicolon said:

Perhaps @Mavus101 made a typo, but since they haven’t completed their VJ timeline it’s hard to tell.

 

@Mavus101, is the Resident Since date on your green card within two years of your marriage date? According to what you wrote in your earlier post (married in 2018 and entered in 2021), you would have been eligible for a 10 year GC.

 

Hi there,

 

I am so sorry yes, I got married in the UK in 2019, that is my mistake. Sorry about that.

[Mavus101 0]

Hello all,

 

As promised I am updating you all, I just got off the meeting my attorney and he has been doing this for 25 years and is not even remotely concerned about my situation, we will have to refile for my I-751 once the divorce has taken place and we will file with a waiver. We have enough evidence and even my drivers license is enough plus car insurance with her being on mine too. Basically I have nothing to worry about and We've passed the 3 year mark too which makes it even more legit in USCIS eyes, for reasons of wanting to have Children provides a legitimate case. Once we refile my I-751 I'll have another extension and any issues my attorney will be notified etc. Thank you to all who chipped in with everything. You're amazing.

[mindthegap 2,549]

1 hour ago, Mavus101 said:

You're amazing.

 

Unlike your attorney.....

 

 

1)  You can switch an existing joint I-751 filing to a waiver filing, without having to refile, and without having to pay a penny aside form the cost of postage. If he has been doing this for 25years he should absolutely know that. It's I-751 divorce 101 on the most basic of levels.

But then again, attorney 101 is often rinsing clients for fees...and of course, he's the one getting the fees for preparing a new filing, sending it, corresponding...

 

2) You are still legally married. You filed jointly together and have a pending case awaiting adjudication. To the letter of the law, it's a binary thing: Until you are legally divorced, you are still legally married.

If you file for divorce now, until it is completed you are still married, there is no need to notify USCIS. Once the divorce is completed, if your I-751 still hasn't been adjudicated at that point, then that would be the time to notify USCIS with a simple letter requesting a switch to a divorce waiver.  But doing that before you are divorced (or it is imminent to being final, like a few months away) would be absolutely detrimental to you, massively complicates things and will cause you no end of grief. 

[TeddyFazBear 67]

19 hours ago, mindthegap said:

2) You are still legally married. You filed jointly together and have a pending case awaiting adjudication. To the letter of the law, it's a binary thing: Until you are legally divorced, you are still legally married.

If you file for divorce now, until it is completed you are still married, there is no need to notify USCIS. Once the divorce is completed, if your I-751 still hasn't been adjudicated at that point, then that would be the time to notify USCIS with a simple letter requesting a switch to a divorce waiver.  But doing that before you are divorced (or it is imminent to being final, like a few months away) would be absolutely detrimental to you, massively complicates things and will cause you no end of grief. 

 This is where things seem to get complicated in some attorneys eyes. I’ve read some say what you suggest in that it’s best to wait til you hold the final decree in your hand before notifying USCIS and others who say to notify them immediately if you have filed for divorce so things dont get complicated at N400 time if they adjudicate your case while you are technically “separated”.

I tend to agree with your statement but just food for thought. It’s a shame there isn’t more direct guidance from USCIS on how they want this handled, seems like it’s mostly guess work on everyone else’s part sometimes!