Divorce during pending I-751 in California

[EvaT 9]

Hi everyone, 

My I-751 (filled jointly) has been pending for more than 1.5 years, and unfortunately, it looks like we'll be divorcing. I'm in California and the divorce process here takes at least 6 months (waiting period) before it's finalized, and in my case it could take even longer - possible up to 2 years (expecting for the worst).

My questions are:

1. When should I notify USCIS and convert my case to a divorce waiver?

2. If i file the waiver as soon as divorce case is open and USCIS sends me an RFE, I may not be able to provide the final divorce decree in time. Should I wait until the divorce is closer to being finalized before I switch? 

3. What if i get scheduled for the interview while still in the divorce process? Can I attend the interview on my own and request to convert my petition to a divorce waiver there?

[OldUser 10,443]

The biggest problem is if you get approved without interview and USCIS is not aware of divorce.

 

#3 is not the worst thing, yes you'd have to ask to convert I-751 and hope they give you enough days to respond to RFE.

 

Your case is pretty tricky. You need to separate ASAP (like, yesterday). You also need to give whatever your USC wants to make sure the divorce is finalized ASAP.

 

Essentially, you need to focus on divorce right now. Separate, get lawyer and prepare everything so when 6 months is up, you'll have divorce decree coming soon after.

 

Immigration is secondary, but important to keep in mind.

Edited 3 hours ago by OldUser

[Crazy Cat 45,303]

If your interview is scheduled while you are in the divorce process, you can change to a waiver then at the interview.  However, your problem is that they might approved your I-751 without an interview....thinking you are still in marital union.  That could be a real problem when you attempt to naturalize.  

This is a tricky situation since there is no "separated" waiver.  In the eyes of USCIS, it seems you are either married or divorced....no in between. 

Edited 3 hours ago by Crazy Cat

[EvaT 9]

3 minutes ago, OldUser said:

The biggest problem is if you get approved without interview and USCIS is not aware of divorce.

 

#3 is not the worst thing, yes you'd have to ask to conver I-751 and hope they give you enough days to respond to RFE.

 

Your case is pretty tricky. You need to separate ASAP (like, yesterday). You also need to give whatever your USC wants to make sure the divorce is finalized ASAP.

 

1 minute ago, Crazy Cat said:

If your interview is scheduled while you are in the divorce process, you can change to a waiver then at the interview.  However, your problem is that they might approved your I-751 without an interview....thinking you are still in marital union.  That could be a real problem when you attempt to naturalize.  

So the biggest problem getting approved without the interview (thinking I am still in marital union) during the divorce process, would be if I wanted to get naturalized? What if I don't want to naturalize and remain with the green card, would it still be a problem?  

[Crazy Cat 45,303]

3 minutes ago, EvaT said:

What if I don't want to naturalize and remain with the green card, would it still be a problem?  

Yes because it could be seen that you were granted a 10 year Green Card under false pretenses.  The reason I mentioned naturalizing is because USCIS reviews your entire immigration history then.

Edited 3 hours ago by Crazy Cat

[OldUser 10,443]

5 minutes ago, EvaT said:

 

So the biggest problem getting approved without the interview (thinking I am still in marital union) during the divorce process, would be if I wanted to get naturalized? What if I don't want to naturalize and remain with the green card, would it still be a problem?  

Sure thing, even when you renew 10 year GC you can get in trouble. USCIS may change I-90 to ask more questions on form. CBP can also give you trouble. You need to be transparent with USCIS about divorce.

Edited 3 hours ago by OldUser

[OldUser 10,443]

The tricky part is also, if I-751 is denied (because you cannot reply fast enough to RFE), then you can be given NTA. I'd work with divorce and immigration lawyer to make sure the case goes smooth.

[Crazy Cat 45,303]

Personally, I think I would consult an immigration attorney unless you think the marriage can be saved.  The immigration path has some obstacles in this situation due to the timing.

Edited 3 hours ago by Crazy Cat

[JeanneAdil 7,245]

its not a 6 month waiting period _(like after the separtion document like other states) but one of the persons must have lived in Ca for 6 months 

 

 

To file for divorce in California, at least one spouse must have been a resident for a total of six months and lived in a specific county for three months

[EvaT 9]

4 minutes ago, Crazy Cat said:

Yes because it could be seen that you were granted a 10 year Green Card under false pretenses.  The reason I mentioned naturalizing is because USCIS reviews your entire immigration history then.

 

1 minute ago, OldUser said:

Sure thing, even when you renew 10 year GC you can get in trouble. USCIS may change I-90 to ask more questions on form. CBP can also give you trouble. You need to be transparent with USCIS about divorce.

 

Sure thing, I don't want to hide anything and get into trouble later.

The worst part of it is timing and possible RFE. Do you know what is usual timeline to submit documents for the RFE? 

[Crazy Cat 45,303]

Just now, EvaT said:

Do you know what is usual timeline to submit documents for the RFE? 

For a divorce decree I think it is about 90 days.

[OldUser 10,443]

2 minutes ago, JeanneAdil said:

its not a 6 month waiting period _(like after the separtion document like other states) but one of the persons must have lived in Ca for 6 months 

 

 

To file for divorce in California, at least one spouse must have been a resident for a total of six months and lived in a specific county for three months

There's 6 months waiting period. Sure, not 6 months separation period. But typically when things go South, you don't want to be living at the same place.

[EvaT 9]

Thank you everyone, looks like my situation is really tricky.. I will look into immigration lawyers and schedule a consultation with them.. 

[JeanneAdil 7,245]

3 minutes ago, OldUser said:

There's 6 months waiting period. Sure, not 6 months separation period. But typically when things go South, you don't want to be living at the same place.

True but its not 6 months waiting from time of separation as it is in other states (NY is a year) , its 6 months of living in the state 

[EvaT 9]

31 minutes ago, OldUser said:

The biggest problem is if you get approved without interview and USCIS is not aware of divorce.

 

#3 is not the worst thing, yes you'd have to ask to convert I-751 and hope they give you enough days to respond to RFE.

 

Your case is pretty tricky. You need to separate ASAP (like, yesterday). You also need to give whatever your USC wants to make sure the divorce is finalized ASAP.

 

Essentially, you need to focus on divorce right now. Separate, get lawyer and prepare everything so when 6 months is up, you'll have divorce decree coming soon after.

 

Immigration is secondary, but important to keep in mind.

 

Unfortunately I cannot give whatever USC wants, since there are two young kids involved... and what I am afraid of that he may actually use this immigration process against me.