Moonliteem

Ahh, thank you for clearing that up. I have been quite worried reading some boards, not just this one, where people tell you if you're separated you're screwed for want of a better word when that is not the case. We were in love, still are to some extent, but it just didn't work out and we didn't rush to divorce.

Thank you again, to both of you.

Jappau,

I am new here, but was reading a heated discussion regarding separation and filing of the 1-751. I felt you were unfairly bashed and the reason I say that is the Flash that was posted to back up another claim was incomplete.

The Flash from NCS, in addition to saying if you are separated while filing, also says "The NSC would then forward the file to the local district office to schedule an interview. The NSC did not insist on the filing of a new I-751; the joint petition could still be adjudicated as long as the marriage had not been terminated. But if the couple filed a joint petition and subsequently divorced, the NSC reminded the alien that he or she must submit a new I-751 under the good faith/waiver ground. The same procedure would presumably need to be followed if the alien started out filing under one waiver ground (e.g., battered spouse or extreme hardship) and then obtained a final divorce. If he or she wanted the waiver adjudicated under the relatively easy good faith/divorce standard, then the alien would need to file a new I-751 claiming that ground."

Please also read from the ILW articles written by a noted lawyer here http://www.ilw.com/articles/2005,0621-wheeler.shtm#bio which says, "Regrettably, the NSC memo went on to directly contradict the April 10, 2003 USCIS central office memo by advising conditional residents to file under the good faith/divorce waiver if they were merely separated at the time they needed to file an I-751. This inconsistency was partially remedied in a second memo dated March 30, 2005 (NSC Flash #18-2005) where the NSC stated that if the parties "are separated or have initiated divorce proceedings at the time the I-751 should be filed, the beneficiary is not eligible to file for either a joint petition or a waiver of the joint filing requirement due to divorce." But while conforming with the official policy prohibiting filing under good faith/divorce waiver until the divorce is final, it directly contradicted official policy allowing the filing of a joint petition if the parties are merely separated or have recently filed for divorce. To make matters worse, it ended the memo with the warning that "an alien's status may be terminated because they (sic) are unable to file a timely Form I-751, or they may be placed in removal proceedings." The implication was that conditional residents who are separated or in the process of divorcing at the end of their two-year conditional residency period are left without a legal remedy and are looking at possible deportation.

Expectations were running high that the third NSC memo (NSC Flash #19-2005) dated April 11, 2005, was finally going to get it right. The last bulleted paragraph restated current official policy: couples who are separated or have initiated divorce proceedings may still file a joint petition at the end of the conditional residency period. But for those conditional residents who cannot file a joint petition due to the U.S. citizen's failure to cooperate, the NSC indicated that the alien has only two options: (1) file a timely waiver based on being a battered spouse, or (2) file a good faith/divorce waiver – presumably late – once the divorce is final. The memo ends with the same warning that failure to file a timely I-751 will result in deportation proceedings. "

and...

"Failing marriages and good faith/divorce waiver. The hard cases are those where the parties are separated or not getting along. If the parties are still married, even though they may be living apart and contemplating divorce, they can still file a joint petition. The key is whether they are cooperating with each other. There is no requirement that it be a viable marriage at the time the I-751 is filed or adjudicated; the requirement is that the marriage not be terminated and that it was entered in good faith. Ask your client whether it is likely that the U.S. citizen spouse will sign the joint petition and show up for an interview in the future. If so, consider this as the first option."

My husband and I have been married 5 years in February. We gained our conditional residency 6 days before our 2 year anniversary. About 2 years 8 months into our marriage we separated but never divorced. I contacted a good lawyer and we filed jointly stating we were separted and have our interview this Tuesday. My lawyer assures me that the issue is THAT AT THE TIME YOU MARRIED it was for bona fide reasons, not whether you are happily married now.

I hope this helps as I feel you were unfairly bashed when really what you did was confirm the above.

Kindly,

Moonliteem