I-485 and divorce

[RNJ]

Poongunranar,

You are most welcome, dude. I wish you all the best. Even though, both of you have your files at different local-offices, she cannot get her interview without you. She is your dependent and hence the next logical flow is for Philly to transfer her file to Newark and if at all Newark calls for an interview for you without her, then still she has to have you besides her for her interview.

I hope this is true. I read on this forum that sometimes dependents get an interview letter that does not mention the primary. Also, sometimes both primary and dependent get interview letters, but the interviews are at a different time. OK, we'll see what will happen in our case...

I don't think they will transfer her file to Newark, because she no longer hides from USCIS the fact that she lives in a different city (Philadelphia) and in a different state from me, and USCIS has just recently transferred my file to Newark and hers to Philly.

In any case, I just don't see how she will get her GC based on this marriage. That is why she is now trying to milch as much as possible from you. Many Immigration-cum-divorce attorneys are also trying to reap dividends by confusing such girls saying that if you delay the divorce, you will get your GC approved, for example by filing I-360 under VAWA, etc. However, these girls don't apply their mind to see that it is almost impossible to do that, especially if the files are transferred to local office. If the files were at the Service Center level, where no interview is needed, then their game would play to their benefit. So, now the question is, when your wife responded to your divorce, she just didn't know that the files were transferred to local offices. Right? She may have thought and assumed that by delaying the divorce, the GC petition will get adjudicated at the Service Center level without interview and hence no need for your help.

Exactly - her attorney had mailed an objection to my divorce complaint (stating that I showed her address incorrectly and denying 18-month separation) and shortly after that I got the transfer notice from USCIS.

I don't think, you have to wait so long for your future spouse because I-130 or fiance visa doesn't take that long, these days. Why don't you plan on moving onto a faster processing local office where your future spouse can get her fiance visa pretty soon?

Thank you for the feedback,
With best regards,

RNJ

 

[DOM2004]

RNJ,

I am curious to learn the motive behind giving a interview to yr wife at Philly, without you the primary being present. Generally the dependents have to be with the primary to get the case Approved.

Does your wife works on EAD? If so what arguments did she/her lawyer put forth for the USCIS? This would mean that USCIS is considering her to be within rights to get the GC, irrespective of the primary's efforts to take her out.

IF she is approved, this judgement could have a far reaching consequences as far as immigration policies are concerned. I am sure the officers are not yet certain how to deal with this case and may be that is the reason both of you have received the interview calls seperately.

Just my observations.....

 

[poongunranar]

I hope this is true. I read on this forum that sometimes dependents get an interview letter that does not mention the primary. Also, sometimes both primary and dependent get interview letters, but the interviews are at a different time. OK, we'll see what will happen in our case...

That is true. But ultimately, they need to take a decision on primary and then only apply it to the secondary, after making sure that they "intend" to stay together after marriage. If there are problems in a marriage, as it is in your case, they can go with the "bonafide" or "good faith" intent at the time the marriage was consummated. In other words, if the marriage was entered into good faith, technically INS can approve her petition, even though the legal area is very nebulous in this and hence INS may move pussyfootingly on this one.

I don't think they will transfer her file to Newark, because she no longer hides from USCIS the fact that she lives in a different city (Philadelphia) and in a different state from me, and USCIS has just recently transferred my file to Newark and hers to Philly.

This is where I am confused. If she is in Philly and you are in Newark, did you file your divorce in Newark? Please note that you can file the divorce suit at your venue and jurisdiction, if the defendant (your spouse) is living out-of-state. In this case, she is living in Pennsylvania state and you don't need to file the divorce plaint at her venue or jurisdiction. Therefore, I am just not sure how her attorney can even make an objection. I guess you are mentioning about some crap found in their counter-claim AND answer. Counter-claims will always contain what is known as affirmative defense, in which they will make newer claims and voice newer protests. That doesn't mean those claims are valid. You have the choice to respond to those spurious claims in the counter-claim or just move ahead with the next process -- the process of discovery.

This is what should happen in your case and you please confirm if it is: You have filed the divorce plaint at the Superior Court of the County of your residence in NEWARK, NEW JERSEY. Your wife, living in PHILADELPHIA, PENNSYLVANIA is contesting your divorce by subjecting herself to the court of jurisdiction in Newark, NJ. You don't need to worry about this divorce plaint, because it is going to be very challenging to your wife to come for every status-conference to Newark, NJ. Also, any divorce attorney will tell you that all contested divorces will end as uncontested divorces.

Exactly - her attorney had mailed an objection to my divorce complaint (stating that I showed her address incorrectly and denying 18-month separation) and shortly after that I got the transfer notice from USCIS.

Please read my comments, supra.

 

[TheRealCanadian]

Generally the dependents have to be with the primary to get the case Approved.

When a case gets transferred, USCIS likes to keep the primary and dependent files together, and if you're calling in the primary for the interview it costs nothing to haul in the dependent spouse and verify the bona-fides of the marriage while you're at it. There's no formal requirement, tho'.

This would mean that USCIS is considering her to be within rights to get the GC, irrespective of the primary's efforts to take her out.

That would be an interesting development. Basically, if the marriage is over or divorce proceedings are started, then USCIS will deny the GC. This is pretty established case law for EB, FB and asylum, and I'd be surprised to see USCIS change things.

I am sure the officers are not yet certain how to deal with this case

The primary's interview is definitely going to be before the dependent's; at the interview he just needs to swear under oath that the marriage is dead, provide the divorce paperwork and withdraw his affadavit of support. End of story.

 

[TheRealCanadian]

If there are problems in a marriage, as it is in your case, they can go with the "bonafide" or "good faith" intent at the time the marriage was consummated. In other words, if the marriage was entered into good faith, technically INS can approve her petition

USCIS is very interested in the state of the marriage going forward, not just in the past. If the marriage remains in existence solely for the purpose of obtaining an immigration benefit, then the parties can get into a lot of trouble, since that's fraud.

Our OP is doing himself a favor by being so proactive to USCIS.

 

[poongunranar]

TheRealCanadian

USCIS is very interested in the state of the marriage going forward, not just in the past. If the marriage remains in existence solely for the purpose of obtaining an immigration benefit, then the parties can get into a lot of trouble, since that's fraud.

Our OP is doing himself a favor by being so proactive to USCIS.

Friend, I agree fully with your second part of your asseveration, whereas I respectfully disagree with the first part of your assertion. USCIS may not deny a petition based on going forward as you have stated, provided the marriage was not entered for immigration purposes only. If it is proven that the marriage was entered solely for immigration benefits, it MUST be denied and I fully agree with your observation on that count. However, when genuine marriages break and result in SEPARATION, DIVORCE, OR ANNULMENT, then INS does have case-law to still proceed, if such a process is not fully consummated. In other words, a mere separation cannot result in denial as you had presaged. That is how I thought at one point and it is certainly not the case. Again, as I said, the case-law in this area is highly nebulous and hence no officer would want to go ahead and either reject or adjudicate a petition,when divorce/annulment proceedings are pending.

My categorical observations on this very specific issue are based on case-law (jurisprudence) as well as the important MEMO dated March 20, 2003, numbered HOADN 7Q/2S.I2, issued by William R. Yates on the subject Spousal Immigrant Visa Petition (AFM Update AD 02-I6).

Let us see certain important provisions of this memo:

Page 4, Points (G) and (H): (G)Legal Separation Vs. Separate Cohabitation: 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.

[H] Interviewing Petitioner and Spouse:: You will often have to question both the petitioner and the beneficiary to determine whether the marriage is bona fide. Remember that the issue to be resolved during the interview is the bona fides of the marriage, not its "viability" (i.e, the probability of the parties remaining married for a long time). The Service is not in the business of determining (or even speculating about) viability. Although the petitioner and the beneficiary may not appear to have a "viable" marriage, the petition may be approved if the marriage is valid and was not entered into solely for immigration purposes....................................

Friend, Point (H) of the memo clearly vouchsafes for my position and opinion on the subject.i.e., if the marriage was established to be one of "bona fide" intent, then there is no question about GOING FORWARD. It has to do only with the past and that is about the "intent" at the "time of marriage" per se. Ipso facto, a spouse can get the GC approved if that is established, notwithstanding any self-imposed separation.

However, since RNJ has broken that self-imposed separation by now taking the issue to a court-of-law, it will be very difficult for INS to approve his wife's -- and this is the position that I have mentioned in this thread from the very beginning. This is also why I am betting dollars to doughnuts that Philly cannot go ahead and approve his wife's without interviewing together and by not taking cognizance of the civil-action suit that RNJ has filed at the court of Judicature in Newark, NJ.

 

[pralay]

However, since RNJ has broken that self-imposed separation by now taking the issue to a court-of-law, it will be very difficult for INS to approve his wife's -- and this is the position that I have mentioned in this thread from the very beginning. This is also why I am betting dollars to doughnuts that Philly cannot go ahead and approve his wife's without interviewing together and by not taking cognizance of the civil-action suit that RNJ has filed at the court of Judicature in Newark, NJ.

I don't have many statistics. But a colleague of my friend had similar case, but their divorced were finalized even before their I-485, without going to court. Primary's case was approved about a month after interview and ex-wife's case is still pending for one year (they were interviewed on same day but separetely). It seems USCIS does not take decision for this kind of cases very quickly. It puzzled me why USCIS did not take decision when the divorce was finalized mutually. EITHER they have a reason for that and the delay is intentional OR they are just lazy - thowing back the file back in the shelves and forgetting it (considering the fact it's not an efficient establishment).

 

[poongunranar]

Pralay

But a colleague of my friend had similar case, but their divorced were finalized even before their I-485, without going to court.

For all legal purposes, a divorce is acceptable, only if it is absolutely decreed by a court of law. A mere mutual agreement between spouses is not only legally untenable, but will also hold no ground with Immigration authorities. Therefore, if your friend had his divorce finalized without going to court, I interpret that to be still a divorce that was uncontested with the "irretrievably broken" clause, aka as "no-fault divorce." Still, that is a divorce, that is absolutely valid, if it had been decreed in a court of law, even though the finalization of such a divorce would have been outside the court., i.e., on mutual basis. As you have stated, INS is just finding any case that involves divorce to be extremely complex to close the files. I am just not sure why this is the case. There is a human element to it that none of the adjudicating officers need to go through the pains of drawing relevant case-law jurisprudence to prepare a denial and follow-it up with removal procedures for the other spouse, etc., I would guess. I don't think they are lazy, I only think they are very much bemused to close the file.

 

[TheRealCanadian]

Friend, I agree fully with your second part of your asseveration, whereas I respectfully disagree with the first part of your assertion.

First off, let me congratulate you for doing some digging and research that is of benefit to everyone here! I'm going to add the caveat that the document you cite relates to spousal immigration (ie. a USC or LPR sponsoring a spouse via IR or FB2) not a dependent spouse, but I think for our purposes the criteria will be the same.

In other words, a mere separation cannot result in denial as you had presaged.

That appears to be directly contradicted by section G. It says that the visa officer may DENY the petition if a legal separation has taken place.

Basically, the memo warns the examiner not to engage in any sort of speculation as to the marriage. The simple fact of seperate residences is not a deal-breaker (which should be comfort to some EB applicants whose working spouses live temporarily in another city).

Additionally, the examiner should not engage in the kind of speculation (that we all probably engage in with certain couples) about how long the marriage will last.

There needs to be a specific, overt legal act to deny the petition, like legal separation or a pending divorce proceeding.

Friend, Point (H) of the memo clearly vouchsafes for my position and opinion on the subject.i.e., if the marriage was established to be one of "bona fide" intent, then there is no question about GOING FORWARD.

Au contraire. The memo simply instructs USCIS examiners not to engage in idle speculation. If there's clear evidence that the marriage will not survive, then section G clearly gives them the authority to deny the petition.

We're in complete agreement about the viability of RNJ's wife's case. When the primary beneficiary is jumping up and down saying that the marriage is doomed, there's 1000% more evidence than USCIS needs to deny the case.

 

[poongunranar]

TheRealCanadian

First off, let me congratulate you for doing some digging and research that is of benefit to everyone here! I'm going to add the caveat that the document you cite relates to spousal immigration (ie. a USC or LPR sponsoring a spouse via IR or FB2) not a dependent spouse, but I think for our purposes the criteria will be the same.

Amen and thanks for the kind words of compliments.

That appears to be directly contradicted by section G. It says that the visa officer may DENY the petition if a legal separation has taken place.

Please note that I had merely said "separation." If it is a "legal separation" aka as "bona fide legal separation," then the INS can immediately deny the secondary's immigration petition. Therefore, BOTH of us are in the same page here. We are not contradicted by Section G; rather, both of our understanding is proven true by Section G. TheRealCanadian and poongunranar are merely clarifying the very important aspect of whether the entire separation and suspension of conjugal rights are being done within the ambit of legal-law under the aegis of the Court of Law which has the proper venue and jurisdiction on both the primary and the secondary, or at least one of them or is being done within mutual agreement of the spouses without any legal intervention.

There needs to be a specific, overt legal act to deny the petition, like legal separation or a pending divorce proceeding.

Amen!

We're in complete agreement about the viability of RNJ's wife's case. When the primary beneficiary is jumping up and down saying that the marriage is doomed, there's 1000% more evidence than USCIS needs to deny the case.

Amen, Amen, Amen!

 

[DOM2004]

However, when genuine marriages break and result in SEPARATION, DIVORCE, OR ANNULMENT, then INS does have case-law to still proceed, if such a process is not fully consummated. In other words, a mere separation cannot result in denial as you had presaged. That is how I thought at one point and it is certainly not the case.

However poongunranar, one has to consider that the status of the dependent is based solely on the primary here for 485 purpose. In other words legally after divorce, the wife in this case will have no locus standi as a independent applicant.

If the USCIS rules in her favor here it will be moving away from their established policies. Given the fact that the USCIS goes to great extent in ascertaining fraud in marriages, (oestensibly to limit GC holders) here is a case where they have clear reasons to drop her.

However it is beyond reason why they would give her a seperate interview in Philly, if their thought process is in same pattern. I guess they are playing safe in this case.

 

[pralay]

However poongunranar, one has to consider that the status of the dependent is based solely on the primary here for 485 purpose. In other words legally after divorce, the wife in this case will have no locus standi as a independent applicant.

If the USCIS rules in her favor here it will be moving away from their established policies. Given the fact that the USCIS goes to great extent in ascertaining fraud in marriages, (oestensibly to limit GC holders) here is a case where they have clear reasons to drop her.

However it is beyond reason why they would give her a seperate interview in Philly, if their thought process is in same pattern. I guess they are playing safe in this case.

You have to keep in mind following things:

1. Legally they are not divorced yet.
2. It's not fraud, unless you prove it fraud. One side claiming it "fraud" does not make it fraud. Till this time I did not get any sign that the marriage was fraud. It was a bad marriage. Period.

Yes, they are playing it safe. But that's reasonable (certainly not "beyond reason").

 

[poongunranar]

DOM2004, RNJ, Pralay

DOM2004:

There are some cases that pop up to my mind, that were ruling along these lines in 1976 as to whether a subsequent break-up may nullify the bona fide intent of the marriage at the outset. I don't have those references right now, but can pull it out later. In any case, there are legal precedents to question such an approach. However, for RNJ's case, it is pretty clear that his wife is having a Hobson's choice to make -- don't count on benefits out of this marriage.

Pralay: (Attn: RNJ)

I am with you on your observation regarding the bona fides of RNJ's case. His case is a marriage that got broken down. Claiming fraud would be suicidal to RNJ because he is now culpable for willingly allowing himself to be a party to fraud. RNJ has to be very careful as to how he presents his case of "broken marriage" to INS. If he claims that the marriage was "sham" and was performed only for "immigration benefits" then he runs the risk of being an abettor and party to fraud, the consequences of which are very huge. That is why, I said, he should not be too concerned about his wife's prospects by allowing his passions to come in way of other legal issues. Rather, he has to be humble enough to accept that at least he had "bona fide" intent to marriage, whereas he cannot claim either way (bona fide or mala fide intent on his wife's part as he has no locus standi on presaging his wife's intent) on the part of his wife's decision to get married. Therefore, the marriage got "irretrievably broken down." That way, RNJ will not attract any punitive action. Claiming the whole marriage to be "sham" on the height of passion and vengeful attitude would be suicidal to RNJ.

 

[DOM2004]

You have to keep in mind following things:

1. Legally they are not divorced yet.
2. It's not fraud, unless you prove it fraud. One side claiming it "fraud" does not make it fraud. Till this time I did not get any sign that the marriage was fraud. It was a bad marriage. Period.

Yes, they are playing it safe. But that's reasonable (certainly not "beyond reason").

pralay,

I did not call "fraud" in context of this case. IT is the policy I was talking about.
My point is, for USCIS the primary applicant need to show that he is able to "support" his dependents ( for 485 application "Affidavit of Support" Form 134 is filled) otherwise even a legal dependent is in trouble. Here in ,RNJ withdraws support (though he may or may not have stated this explicitly to USCIS) for his wife, it would be enough reason for USCIS to consider her application to be nullified.

 

[pralay]

My point is, for USCIS the primary applicant need to show that he is able to "support" his dependents ( for 485 application "Affidavit of Support" Form 134 is filled) otherwise even a legal dependent is in trouble.

True. However, keep in mind that, if a couple is not legally separated and is not legally divorced, any withdrwal of "affidavit of support" also can be taken into court.

 

[pralay]

hey guys, I've seen a couple of posts on affidavit of support.

Although my lawyer made me sign one, I did a little research on this and found that in EB cases an affidavit of support is only REQUIRED if the company sponsoring greencard has a close relative who owns more than 5% of the company.

For some reason in family base cases it is required but in EB cases where you have dependents it is not required.

Some lawyers prefer to provide, some not. I did not provide affidavit of support for my wife's case. Instead, my lawyer asked to provide three recent paystubs and last year tax return.

 

[DOM2004]

True. However, keep in mind that, if a couple is not legally separated and is not legally divorced, any withdrwal of "affidavit of support" also can be taken into court.

Yes I do agree. For RNJ there is nothing at this point, to do, except to wait and see if the USCIS considers his petition and waits for the divorce to finalize, instead of granting her appeal.

 

[TheRealCanadian]

True. However, keep in mind that, if a couple is not legally separated and is not legally divorced, any withdrwal of "affidavit of support" also can be taken into court.

On what grounds?

 

[pralay]

These spouse who entered for just for the immigration benefits is really a backmail for hurting the primary applicant....This is a very bad and I really hate this law of USCIS...They should come up in a way to be under the control of the primary applicant....

It could other way too. She can argue that she got into marriage in good faith, left her own country trusting a "unknown" person, lived with the person N number of years, established her new "own world" here (new friends, new jobs etc), then why only primary will be benefitted from the immigration system and not her.

Lets take an example that your or an CEO/or a big guy in software and your got Ph.d and you got marriage to a stranger and after you come to USA and apply for greencard you come to know that she has an affair in the USA and just married you just because of GREENCARD...What are you going to do???...

Please don't say apply for divorce??, it may take time and it may not be the solution and the primary applicant has to suffer till it is resolved??

WHAT KIND OF USCIS JUSTICE IS THIS??, THIS IS BASICALLY RUINING THE PRIMARY APPLICANT'S CAREER....IN THIS LAW...USCIS IS VERY GREEDY...THIS LAW ALLOWS TO MARRIAGES TO BREAK AND ALSO SUPPORTS THE BAD MARRIAGES........Does any way answer this???

Well, step back. Take out the "green card" part from this whole problem. What should you do now? Do exactly same when it involves GC too. Those kind things (affairs etc) can happen without GC too.

Whether all the GC cases that involve divorce/affairs etc are fraud (the argument that wives got married because of GC) that's debatable. Divorce/affairs would have happened anyway. Only things is that GC processing also came on right time. People get married for purpose. The reason could be: the person is CEO, gets fat salary, lives abroad therefore it's is perceived that wife's live would be easy, "stylish" and full of money. For many male persons from some countries (including my native country India) that's a good qualification to get a "good" wife . It's more of a cultural and social issue than immigration. If he used/advertised this qualification to get a "stranger", then blame it to himself.

USCIS has nothing to do with ANY of this.

 

[pralay]

On what grounds?

Very simple. Living under same roof, after a dispute I cannot plainly decide that I am not going to feed my wife or support my wife.