N-400 and Stipulation of discontinuance / Divorce

R

roberto gasta

Registered Users (C)
Hi,

My wife (USC) today come back home and asked me to seat;

She told me today she went and filed divorce papers (we live in Queens NY);
as she says
she feels unhappy and she thinks we dont love each other anymore;

Things have been quite heavy lately with my job and i come home exausted and
late every day, but I never expected such a SHOCKING decision;

The interview appointment for the N400 has to come yet (i filed on SEPT 08 so is coming up)but I feel bad to give up my marriage and my citizenship;

i tried to convince her and made change her mind but she said she is not going to change anything;

What happens now? can I dispute this divorce?

if i sign it will the Court record this separation/divorce?

If the appointment letter come in and i show up at local office, will they see
a separation recorded? will i be in danger/ risk to have my GREEN CARD taken away?

please advice,

thank you, any opinion will be much appreciated
 
I would say for as long as you had the marriage "in good faith" there is nothing to worry about, but lets hear what others have to say.
 
You'll have to remain married up until the oath date if you applied under 3 year rule. If during the interview the IO discovers there are signs the marriage is in trouble (filing of divorce papers, separation), you will be denied. If your wife has made up her mind, then you must move on. Even if you contest the divorce, it won't help your naturalization process. As for GC, it won't be taken away from you since you have already had conditions removed. The good news is you can wait another 2 years and apply for naturalization under 5 year rule.
 
He already filed his N400 based on 3 year rule. Can he withdraw the application and wait another 2 years to refile under 5 year rule?
 
Bob,

you know that from experience? I would have a difficult time accepting this since the N400 has been filed and he was doing it in "good faith". Technically anything that is beyond ones control can happen during the application process, incl. divorce.

Although section 319(a), as distinguished from sections 319(B ) and (d), further requires that the petitioner shall live in marital union with the citizen spouse during the entire period of three years immediately preceding the date of his petition, no similar requirement exists for the period between the date of filing the petition for naturalization and the date of naturalization, during which period only the existence of a legally valid marriage is required. 12b /

(2) Marital union for purposes of section 319(a) . The requirement that the petitioner live in marital union with the citizen spouse during the three-year period should be given a reasonably strict construction in order that it may lead to accomplishment of the objective of having the noncitizen spouse absorb basic concepts of citizenship through close association with the citizen spouse.
 
Bobsmyth said:
You'll have to remain married up until the oath date if you applied under 3 year rule. If during the interview the IO discovers there are signs the marriage is in trouble (filing of divorce papers, separation), you will be denied. If your wife has made up her mind, then you must move on. Even if you contest the divorce, it won't help your naturalization process. As for GC, it won't be taken away from you since you have already had conditions removed. The good news is you can wait another 2 years and apply for naturalization under 5 year rule.
Click to expand...

in another forum, someone suggested that if you are honest to the immigration
officer aand you tell him about your situation, the worse that can happen they will deny me; but there are small chances that i will get approved as
well;

what do you think about that? is this one of those "grey areas" where
cis does not have specific rules?
 
MartinAub said:
Bob,

you know that from experience? I would have a difficult time accepting this since the N400 has been filed and he was doing it in "good faith". Technically anything that is beyond ones control can happen during the application process, incl. divorce.

Although section 319(a), as distinguished from sections 319(B ) and (d), further requires that the petitioner shall live in marital union with the citizen spouse during the entire period of three years immediately preceding the date of his petition, no similar requirement exists for the period between the date of filing the petition for naturalization and the date of naturalization, during which period only the existence of a legally valid marriage is required. 12b /

(2) Marital union for purposes of section 319(a) . The requirement that the petitioner live in marital union with the citizen spouse during the three-year period should be given a reasonably strict construction in order that it may lead to accomplishment of the objective of having the noncitizen spouse absorb basic concepts of citizenship through close association with the citizen spouse.
Click to expand...

Here's what the rule (8 CFR 319.1) says :

(b) Marital union—(1) General. An applicant lives in marital union with a citizen spouse if the applicant actually resides with his or her current spouse. The burden is on the applicant to establish, in each individual case, that a particular marital union satisfies the requirements of this part.

(2) Loss of Marital Union—(i) Divorce, death or expatriation. A person is ineligible for naturalization as the spouse of a United States citizen under section 319(a) of the Act if, before or after the filing of the application, the marital union ceases to exist due to death or divorce, or the citizen spouse has expatriated. Eligibility is not restored to an applicant whose relationship to the citizen spouse terminates before the applicant's admission to citizenship, even though the applicant subsequently marries another United States citizen.

(ii) Separation—(A) Legal separation. Any legal separation will break the continuity of the marital union required for purposes of this part.

(B) Informal separation. Any informal separation that suggests the possibility of marital disunity will be evaluated on a case-by-case basis to determine whether it is sufficient enough to signify the dissolution of the marital union.


So, if you're in the middle of divorce during naturalization process it will break continuity of marriage union. The OPs wife has already filed divorce papers, so he will have to present them at interview.
 
roberto gasta said:
in another forum, someone suggested that if you are honest to the immigration
officer aand you tell him about your situation, the worse that can happen they will deny me; but there are small chances that i will get approved as
well;

what do you think about that? is this one of those "grey areas" where
cis does not have specific rules?
Click to expand...

Since your wife has already filled divorce papers, it is considered break in martial union requirement and therefore makes you ineligible.
 
How would this be a gray area? You're applying based on your marriage (i.e., 3 year rule). You will be not be married or will be in divorce proceedings by the time of interview or oath.... That seems to me like you're not meeting a fundamental requirement for the application. Married/not married (or will not be married) seems pretty clear in your case. Perhaps it's discretionary question if your marriage is in trouble but you're in counseling, making an effort and nobody's filed for divorce or something like that.

That said, you're not risking anything by going through the motions. The IO will just reject you and you'll reapply in two years under the 5 year rule.

BTW good faith only applies to submission of the application (i.e., you didn't lie then). I fail to see how it's going to help you at the interview or oath. At the interview the IO will inquire as to whether or not you have a valid marriage.
 
rangav said:
He already filed his N400 based on 3 year rule. Can he withdraw the application and wait another 2 years to refile under 5 year rule?
Click to expand...
Yes, he can withdraw application or go to interview and be denied. Either way he'll be able to apply under 5 year rule in 2 years.
 
don't get any citations for something stupid (kicking her butt literally, etc, especially as it sounds like she has her reasons which might be valid from her perspective) just because you're angry; It will only make things worse for you, when the time comes for your 5-yr based application.
Just try to be patient, and think of the fact that you still have a chance to apply again; lots better than none.
Try to keep your 2nd application clean.
 
Washburn27 said:
don't get any citations for something stupid (kicking her butt literally, etc, especially as it sounds like she has her reasons which might be valid from her perspective) just because you're angry; It will only make things worse for you, when the time comes for your 5-yr based application.
Just try to be patient, and think of the fact that you still have a chance to apply again; lots better than none.
Try to keep your 2nd application clean.
Click to expand...

Wonderful advice! You need to be patient and keep the records clean.
 
Bobsmyth said:
Yes, he can withdraw application or go to interview and be denied. Either way he'll be able to apply under 5 year rule in 2 years.
Click to expand...
Probably less than 2 years, depending on when his green card was originally approved. If he already has completed 5 years minus 90 days as a permanent resident, he can withdraw the existing N-400 right now and reapply immediately.

And if it was already 5 years minus 90 days back when he submitted the N-400, he could even ask the interviewer on the spot to change the application from the 3-year marriage option to the 5-year option, without having to reapply. I've read of somebody doing that successfully. However, I don't think the interviewer is obligated to cooperate.
 
The OP's previous postings suggest he got marriage based GC in December 2005, so that would make him eligible to reapply by September 2010.
 
rangav said:
Wonderful advice! You need to be patient and keep the records clean.
Click to expand...

I'm the original poster,
The comment about kicking my wife to the moon was not made by me;

At this point my concerns re:
- what is the point to even show up at interview if I already know I will be denied?
DO I HAVE to SHOW UP?
Or can I just abandon the petition? What are the risks of showing up (carrying divorce proceedings) vs not show up??

- can a divorce filing be withdrawn?/postdated? Maybe I can convince my wife to wait or postdate
The divorce;

Pls share
Thanks
 
roberto gasta said:
I'm the original poster,
The comment about kicking my wife to the moon was not made by me;

At this point my concerns re:
- what is the point to even show up at interview if I already know I will be denied?
DO I HAVE to SHOW UP?
Or can I just abandon the petition? What are the risks of showing up (carrying divorce proceedings) vs not show up??

- can a divorce filing be withdrawn?/postdated? Maybe I can convince my wife to wait or postdate
The divorce;

Pls share
Thanks
Click to expand...

If you decide to abandon your application, schedule an InfoPass and officially withdraw the application. I'm not sure if it's require to do so, but it would make it look better, as opposed to ignoring USCIS correspondence and waiting for them to administratively close the application.
 
roberto gasta said:
I'm the original poster,
The comment about kicking my wife to the moon was not made by me;

At this point my concerns re:
- what is the point to even show up at interview if I already know I will be denied?
DO I HAVE to SHOW UP?
Or can I just abandon the petition? What are the risks of showing up (carrying divorce proceedings) vs not show up??

- can a divorce filing be withdrawn?/postdated? Maybe I can convince my wife to wait or postdate
The divorce;

Pls share
Thanks
Click to expand...

Might be worth going if it's not too far out of your way. You have already paid the $'s and they are not going to refund them so even if there's very small chance of success, there's no downside except your time and travel costs.

H
 
roberto gasta said:
- can a divorce filing be withdrawn?/postdated? Maybe I can convince my wife to wait or postdate
The divorce;

Pls share
Thanks
Click to expand...

Unless you can convince your wife to withdraw the divorce and refile it until after oath date, you'll have to present the divorce filing at interview and be denied (if you decide not to withdraw application).
 
heantune said:
Might be worth going if it's not too far out of your way. You have already paid the $'s and they are not going to refund them so even if there's very small chance of success, there's no downside except your time and travel costs.

H
Click to expand...

Since divorce papers have already been filed the OP will have to present them at interview , it will show a clear indication of a break in martial union. There's zero chance of an application being approved on the basis of a break in martial union.
 
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