How will divorce effect Removal of conditions?

[SOlcayto 0]

I am the USC and am about to file for divorce. Does my spouse still stand a snowball's chance in hell at filing to remove conditions and having it approved? His two-year green card will expire in Feb. Will he be automactically deported? I don't necessarily want that to happen to him and have him start his life and career over again but I no longer want to stay married to him either.

Thanks in advance!

SOL

[YuAndDan 153]

Filing if the Couple is Married

If the couple is still married, the I-751 must be filed jointly within the 90 days immediately before the end of the second year of conditional permanent resident status. Ideally, the couple is still together and happily married. They file their joint I-751 and show that their marriage is on-going and bona fide. Evidence submitted should include updated documentation of their joint address, any joint assets / liabilities, evidence of any children, and any other proof that they are living like most married couples.

Filing if the Couple is Separated

More troublesome is if the couple is still married, but separated or otherwise not getting along. With limited exception, as long as the couple is legally married, it is necessary to have a joint petition. Thus, troubled marriages often need either to be reconciled or terminated in order to file the I-751. As explained below, the I-751 can be filed by divorced individuals, and may be approved, as long as there is sufficient evidence that the marriage was genuine when initially entered into. It is more difficult to satisfy the USCIS in such scenarios, however.

Joint-Filing Waived in Limited Cases

There are two situations in which a person who is still legally married can file the I-751 without the spouse. The first is if the person entered into a marriage in good faith, but has been battered or subjected to extreme cruelty by the petitioning spouse. The second is if termination of permanent resident status and removal from the U.S. would result in extreme hardship to the foreign national. Extreme hardship is a high standard and can be based only upon conditions that arose after the conditional residency was acquired.

Filing after Divorce or Annulment

A conditional permanent resident with a marriage that was terminated due to divorce or annulment must file for a waiver of the requirement of the joint filing of Form I-751. To obtain an approval of the I-751 and be granted unconditional lawful permanent resident status, the conditional permanent resident spouse must be able to show that s/he entered into the marriage in good faith.

The person seeking permanent resident status should expect to undergo an interview at the USCIS about the marriage. The USCIS will closely scrutinize whether the marriage was bona fide at its inception. The USCIS will review the divorce decree and complaint for matters that may be reflective of whether the marriage was entered into purely for immigration purposes or to perpetrate fraud against the United States citizen spouse or the USCIS.

http://www.murthy.com/news/n_remcon.html

So.. If married or just Seperated the couple need to file the I-751 jointly, but if Divorced, the green-card holder can file for a waiver to the joint filing requirement and file I-751.

[SOlcayto 0]

Thanks for the info. Does anyone know the likelihood of it being approved? I'm filing for divorce on Monday and he can file his paperwork to remove conditions Nov. 4th. We have over 20,000 emails that support the fact that we did enter into this marriage in good faith, photos during holidays, my family and friends can give written letters, whatever. Also, if we are divorced and he is approved, am I still responsible for him if he gets on welfare? I know that when I signed the form to sponsor him it is legally binding for ten years even if there is divorce but does that apply if the divorce happens in the first two years?

Thanks!

SOL

Edited September 21, 2007 by SOlcayto

[mawilson 2,133]

Thanks for the info. Does anyone know the likelihood of it being approved? I'm filing for divorce on Monday and he can file his paperwork to remove conditions Nov. 4th. We have over 20,000 emails that support the fact that we did enter into this marriage in good faith, photos during holidays, my family and friends can give written letters, whatever. Also, if we are divorced and he is approved, am I still responsible for him if he gets on welfare? I know that when I signed the form to sponsor him it is legally binding for ten years even if there is divorce but does that apply if the divorce happens in the first two years?

If you want his petition to be approved, why are you in such a hurry to file for divorce?

Let him get his 10-year card, then file for divorce.

[SOlcayto 0]

We have been separated since April and I want to move on with my life without him in it in any way. I don't really care if it's approved or not, I was saying I didn't necessarily want him to be deported if he doesn't want to be but if it has to happen then so be it. I did love him at one point and I want him to be happy. I'm not even sure if he wants to stay here, I was just trying to gather information to provide to him so he can be prepared for what's going to happen.

And like I said, we have been separated since April I'm not in a huge hurry, this has been in the works.

SOL

[SOlcayto 0]

Also, I don't want to do anything illegal and for me, it's not right for me to sign papers stating we are happily married when we're not. I believe that would be illegal to stay married just for his 10 yr. green card, I mean at this point there would be no other reason for us to stay married, we haven't been living together for 6 months.

SOL

[mawilson 2,133]

We have been separated since April and I want to move on with my life without him in it in any way. I don't really care if it's approved or not, I was saying I didn't necessarily want him to be deported if he doesn't want to be but if it has to happen then so be it. I did love him at one point and I want him to be happy. I'm not even sure if he wants to stay here, I was just trying to gather information to provide to him so he can be prepared for what's going to happen.

And like I said, we have been separated since April I'm not in a huge hurry, this has been in the works.

SOL

Ok - that makes sense. How long does it take to divorce someone in your state?

If you're still legally married on Nov 4, he'll have to apply as "married" and you'll have

to sign the removal forms (whether or not you're "happily" married.)

Edited September 21, 2007 by mawilson

[mawilson 2,133]

More troublesome is if the couple is still married, but separated or otherwise not getting along.

With limited exception, as long as the couple is legally married, it is necessary to have a joint petition.

He can file for a waiver of the joint filing requirement and then file for removal of conditions

without your help - but ONLY if you're divorced. If you're still married when he files, he will

have no choice but to file jointly and ask you to sign the I-751. I don't think it would be

illegal for you to sign it though - there's no sworn statement or anything - it's only to confirm

that you're still married.

[SOlcayto 0]

Oh, ok, that makes sense. Thanks for the info! We will be filing an uncontested divorce, we have lived in an apartment so we didn't buy a house or even cars together and we have no children together, so it takes less than 30 days. If we had to do all this other stuff with division of property and child custody issues the soonest would be 61 days. Just to answer your question.

[lucyrich 19]

Also, if we are divorced and he is approved, am I still responsible for him if he gets on welfare? I know that when I signed the form to sponsor him it is legally binding for ten years even if there is divorce but does that apply if the divorce happens in the first two years?

There are five conditions that terminate the I-864. Divorce isn't one of them, even if it happens in the first two years. The passage of ten years isn't one of them, either. The five terminating conditions are:

His death

Your death

His becoming a citizen

His being credited with 40 quarters of work for social security purposes

His leaving the US permanently

Also, while the affidavit certainly talks about reimbursing the government for means tested benefits, I'm not aware of any actual case where it's been enforced for this. Recent immigrants usually aren't eligible for most means-tested benefits. I AM aware of a few cases where the affidavit has been enforced directly by the alien spouse against the USC spouse. When you signed the affidavit of support, you promised to support him at 125% of the poverty guidelines until one of the five terminating conditions happens. If his income falls below that, he could sue you to make up the difference. I'm not saying that's likely, but it's something to be aware of. Google "Stump v Stump". And make sure your divorce lawyer is aware of this situation.

[SOlcayto 0]

Thank you for that information. He is taking this really hard and has already threatened to sue me. So, even though I'm trying to be mature and understanding, I guess I'm going to have to hope that he doesn't get approved to stay here then. I hate how divorce has to get so ugly.

SOL