Divorce not final on conditional green card...please check this chart

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frustratedmaven

Registered Users (C)
Hi,

Unfortunately I am going through divorce now while on Conditional Green card. My GC is going to expire in a few months and I don't think my divorce will be final by then. My wife is not willing to file jointly so I'll have to file a lone. Unfortunately the law puts me in an awkward situation when the divorce is not final by the time I have to file I-751. Of course this is a 100% legit marriage with enough evidence to prove it. I read many threads on the subject, many articles online and even consulted with a few immigration lawyers and there doesn't seem to be a general consent on whats the best approach to take in such situation. For those who are going through the same situation I created a flow chart that points all (most) possible scenarios:

http://img182.imageshack.us/my.php?image=chartdm8.jpg

I would really appreciate it if you guys can look at this chart, tell me if it looks reasonable to you, correct me if I made a mistake or missed other possible scenarios. I also would really appreciate it if you can suggest the best possible path to take. Thanks,
 
Thank you!!!!!

This is exactly what I came to this forum to look up and the first post is this! Amazing!

Right now my temporary 1 year extension is about to be up in a month. The last letter I received was that they moved it to the local office and they would contact me with a date for an interview. Unfortunately they sent that letter on Sept 25th 2007 and I still have not received my date for interview. I am pretty scared because I don't know what will happen if I don't have an interview before my 1 year extension is up.
 
Yeah, I submitted the I-751 before my divorce was final and my green card expired. In fact, it still isn't final. We've been technically separated for a year and a half now. The paperwork is "in processing", quite like the status of my case.

In fact I can't even pull up my receipt number with the USCIS. I guess I will have to talk to a representative on Monday to find out more. I really hope they didn't already give me an interview date but I never received the notice. Although I feel that is unlikely. My 1 year extension is up on March 9th. Just over a month away. Things are getting pretty close here.
 
You know I am quiet surprised your I-751 wasn't denied or at least they didn't send you a letter asking for the divorce decree (I am assuming you filed alone under divorce waiver...correct?). Can you get an infopass appointment and request another 1-year extension?
 
Sonar, are you on divorce proceedings or only separated? How you will do in the interview? is your wife willing to go with you? did you received a biometrics appointment letter? If so try the receipt from it, normally the extension letter does not work to check out your status online.

There have been cases that people already file for divorce and few weeks later received the denial.

Frustra...unfortunately that is exactly one of the immigration law firms were explaining about the memo, that put the immigrant in a bad situation. Unfortunately there is nothing you can do about it and get a good lawyer. In the case that divorce is not final before the 90 day window is up, you will be put on removal and have the chance to explain the situation in front of an immigration judge...for me they could save a LOT of time and money from taxpayers, if they let people file with at least the court papers that a divorce have been filed. Since you are already on divorce proceedings you must wait for your divorce decree...the problem is in states that the family law is not as fast as others, take years or even separation most ocurr first. Pretty nice flow chart...but remember one of the evidence to file alone is divorce decree (in your case).

You probably already check this, old but still valid: http://www.ilw.com/articles/2003,0606-mehta.shtm


You said that is going to expire in few months, are you still within the 90 day window? how long you think it will take?
 
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My card will expire early April. I filed for divorce in November but unfortunately my soon to be ex-wife is trying to prolong/obstruct the divorce by contesting it and asking for ridiculous demands (alimony,full custody...etc). I am not willing to succumb to her claims so we're taking the divorce to court and the trial date in in July! There is little hope this will be settled before April.

So I am really in an awkward position. One thing I am leaning to is to file I-751 anyway even before the divorce is final. My understanding is that I will get a NOA and 1-year extension even before a decision is made. If they deny my application before I send them the decree I understand I will receive an NTA. I can show the judge then that the reason I didn't send the decree is because the divorce wasn't final by the time I submitted my I-751 and will ask for continuation.

I know the memo says that you SHOULD NOT file before the divorce is final, but thinking about it makes more sense to file anyway because whether you file or not you will get an NTA. At least when you file you have evidence to prove that you are still in legal status.

Any thoughts on whether its better to file anyway or not file till divorce is final ?


Thanks,
 
Have you considered filing based on one or both of the two other available I-751 waivers, with whatever evidence you can come up for, and hoping it will result in an RFE that will allow you to timely file and keep your case going until your divorce is finalized and you can file another I-751 based on the divorce?
 
Yes, you could do that trick to file even the divorce is not final but only IF your wife is willing to file jointly with you, which still is in the line of the memo because you are already due in court for divorce, do you have kids? if you don't I don't see how she can get alimony...unless she can battle that does not mean the judge will granted...but you said that she obviously is not cooperating, so I don't see how. And to file alone you need to have evidence of filing alone e.g. death certificate, divorce decree, domestic violence related issues-police reports, etc. Not just file alone to file alone. Read the instructions on I-751 for how to file with the waiver of file jointly.
 
cherr1980 said:
Sonar, are you on divorce proceedings or only separated? How you will do in the interview? is your wife willing to go with you? did you received a biometrics appointment letter? If so try the receipt from it, normally the extension letter does not work to check out your status online.
Click to expand...

We are still in divorce proceedings. In fact, I had to sign some papers last night in order for the court to continue with the proceedings. I am not sure how far along in the process I am since my ex wife is taking care of that side of things. I am not that worried about my interview, I feel that if I explain the situation as truthfully and as fully as possible it won't be a problem. I've been wanting to talk to an actual person for a while now. Unfortunately I don't have my passport from Canada as it is still being renewed. This 8 month turnaround for Canadian passports is ridiculous. I had it returned once on me for a bad picture and had to send it back in again. Over a year I've been dealing with this now and no resolution is in sight.

As for my wife, yes, she will come with me 100% of the way until everything is done. She will be at the interview I don't feel that she has any angst towards me that would cause problems. She was the cause of the divorce from her infidelity and unwillingness to continue with the relationship, which she knows and is willing to testify to. We don't have kids so while it is much easier for a divorce, it is much harder to prove the relationship. While I really don't agree with it on a personal level, I guess that is just how the system works. I don't understand how kids make a relationship anymore real.

I have received my biometrics letter only a couple of weeks after I sent in the initial removal of status, and I went through the biometrics procedures again a couple of weeks after that.

Thanks for your help though. It is an insight. I just hope everything goes smooth with the interview. I've been living in the states nearly half my life now and have lost my Canadian identity. I don't know what I would do if I ever had to go back.
 
Well if you want to see your case online use the one from your biometrics not the one for the extension of one year. But anyway you have already your interview.

Your case for sure is very unique. I hope everything goes fine. Please keep us posted!

As my grandmother says the only thing that has no solution in life is death. So, in the worst scenario you will be able to get in front of an immigration judge, yes the hassle is really unnecessary I think...but the law is written so far as it is.

Actually there is no need to have children...if you have then you include them, but it's not a must, same as name change and like have every single account in both names, some it's okay. Actually the list that they do is one of the many things that you can include for your evidence, for sure the financial part is a big deal. For friends experience...for sure get together is easier than to get separated...get the worse of people.

Good luck!
 
cherr1980 said:
Yes, you could do that trick to file even the divorce is not final but only IF your wife is willing to file jointly with you, which still is in the line of the memo because you are already due in court for divorce, do you have kids? if you don't I don't see how she can get alimony...unless she can battle that does not mean the judge will granted...but you said that she obviously is not cooperating, so I don't see how. And to file alone you need to have evidence of filing alone e.g. death certificate, divorce decree, domestic violence related issues-police reports, etc. Not just file alone to file alone. Read the instructions on I-751 for how to file with the waiver of file jointly.
Click to expand...

Thanks for the advice. I read the instructions on I-751 many times..there is a gap in the instructions. It says that if you don't timely file you lose your status...and then it says if you have a convincing reason why you didn't timely file send it and we will consider it....but it doesn't explain what is your status in between . Are you still considered in status ? out of status ? can you still legally work ?

My other question is do you always get an NTA if you don't submit the I-751 on time? How long does it take ? If it takes time to receive an NTA then there is a chance I can finalize my divorce and send the I-751 with a written explanation for the delay. But what happens if I receive the NTA after I send my I-751?

I told you its awkward :(
 
If your divorce is not finalised by the time your 2 year card is expiring, send in an I-751 anyway. Then once your divorce is final, send another one. This will ensure that no NTA is ever issued.

frustratedmaven said:
My other question is do you always get an NTA if you don't submit the I-751 on time? How long does it take ? If it takes time to receive an NTA then there is a chance I can finalize my divorce and send the I-751 with a written explanation for the delay. But what happens if I receive the NTA after I send my I-751?

I told you its awkward :(
Click to expand...
 
That's exactly the "limbo" is about. Unfortunately if you don't apply on the 90 day window yes you get on removal and must wait to be call in front of an immigration judge, during that time you are out of status since your conditional green card won't be valid anymore since will be expired by that time. On the link it's pretty well explain the issue on people like you that are in the middle of a long process and that probably before your card is expired you still will be on a divorce court.

I found this, it might help...this is from 2006 but remember that the fees changed last year. http://www.nwirp.org/Documents/FillingAnI-751Waiver.pdf

If you file alone, you need to file at least under one ground to waive the file jointly. On page 2 of the I-751 instructions you can find what is the "initial evidence" that you need to send in whatever ground you select.

You should consult a lawyer and s/he will explain you strictly what the law states about the waivers, and if you can do what you want to do or what to do to avoid to get in the "limbo".

Get a search or go to british expats there are some waiver cases over there.
 
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