Filed a derivative 485. Can principal force me to leave?

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newbie485

New Member
Filed 485 a year back as derivative of EB2 principal spouse. Spouse now asking me to leave. Married 20+ years ago, stayed 5 years together in US on H1, had a US born child, then I left for home country, stayed separately (no legal separation), returned to US after 10 years on B1 to reunite as family, spouse asked me file derivative 485 to reunite as family.
I filed, but we still stay separately. Can my spouse force me to leave by writing to USCIS?
 
newbie485 said:
Filed 485 a year back as derivative of EB2 principal spouse. Spouse now asking me to leave. Married 20+ years ago, stayed 5 years together in US on H1, had a US born child, then I left for home country, stayed separately (no legal separation), returned to US after 10 years on B1 to reunite as family, spouse asked me file derivative 485 to reunite as family.
I filed, but we still stay separately. Can my spouse force me to leave by writing to USCIS?
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I meant can my spouse force me to leave by saying to USCIS that we lived separate many years and continue to live so, and also by alleging various things against me that are better addressed by family counselor/court rather than immigration agency. Of course we spent time many times in between as family together as well. While relationships are complex, marriage is a fact.
 
The State Department uses the following rule:

An applicant is deemed a "spouse" for visa adjudication purposes, even though the parties to the marriage have ceased cohabiting, if such marriage was not contracted solely to qualify for immigration benefits. If the parties are legally separated, i.e., by written agreement recognized by a court or by court order, the applicant no longer qualifies as a “spouse” for visa adjudication purposes even though the couple has not obtained a final divorce.
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In your case, the application will be under the sole jurisdiction of USCIS, not the State Department. USCIS policy guidance is less explicit, but appears to be aligned with the State Department:

A legal separation is not proof of marital capacity. A final decree of divorce, annulment or death must be
presented as proof of termination of a prior marriage. If either party’s prior marriage(s) has/have been
terminated by divorce or annulment, the petitioner must establish that the divorce or annulment is valid
under the laws of the place where pronounced. It must then be judged by the law of the jurisdiction where
the parties to the divorce were actually residing at the time of the divorce.

You may deny the visa petition in cases where the parties entered into a valid marriage, but have since
obtained a legal separation prior to the final adjudication of the visa petition. However, if the parties
entered into a valid marriage, have not obtained a legal separation, but simply reside separately, the petition
may not be denied merely because of such separate cohabitation. The issue of separate cohabitation is
relevant, however, in determining the intent of the parties at the time of the marriage
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If your spouse obtains a decree of legal separation from you, then you must inform USCIS that you are no longer eligible for derivative status. If you merely live apart but you are not separated, then it appears that you are still eligible for derivative status as long as the marriage was not originally entered into for immigration purposes, however it is possible that USCIS will ask for additional documentation and may interview you and/or your spouse, which will complicate your case and increase the processing times. I highly recommend consulting a qualified immigration lawyer.
 
@wagecuck3 thanks a ton. From what I read above, I think no reason for denial or ineligibility, but quite likely USCIS will call for more info or interview or send me notice-to-deny and then it will depend on how my spouse & I work it out. Hopefully we will be fine by then.

Like I said in my original post - Married 20+ years ago, stayed 5 years together in US on H1, have a US born child, I left for home country, stayed separately (no legal separation) for 10 years, spouse then visited home country to meet me, I started making B1 trips to US to try and reunite as family, and after another 5 years spouse suggested I file as derivative of an approved principal EB 485 to continue to stay here. I filed, continued to stay but still separately. During these 15 years of psuedo-separation, we have talked a lot, I sent money from home country, even legal processes like child support, divorce were initiated but withdrawn
.
Bottomline - let USCIS decide if & when spouse writes 'own version' to them by oneself or with some attorney help.

I have 2 add-on queries
1) basis above, whatever USCIS does, they can't ban me, can they? In other words, I can still enter on B or apply for H/L visas later?
2) I guess I need not pre-emptively write 'my version', nor should I engage attorney until USCIS sends me some notice
 
1) You will not be banned unless a determination is made that you committed fraud or misrepresentation. In your case, the State Department's 90 day rule could possibly lead to a presumption of misrepresentation if, within 90 days of entering the US, you had ceased to engage in business activities consistent with B-1 classification and had taken up residence in the US. It is possible to rebut such a presumption by demonstrating that your intent only changed after admission. If you are concerned about this, please consult a lawyer.
2) I would still recommend consulting a lawyer sooner rather than later. You don't want to be under time pressure later.
 
@wagecuck3 once again, thanks. 90 day rule does not apply. I have come on B1 many times in last 5-6 years, stayed for varying periods, gone back. Last entry was Dec 2019, extended in Jun 2020 due to covid, 485 filed in Jan 2021, EAD Feb 2022.
And I will surely consult a lawyer once I am sure that spouse has written to USCIS, and not wait till USCIS notifies me
 
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