I 751 Concerns

rze

Registered Users (C)
I have some questions about filing I 751 form. I'm suppose to send in for my extension early January. My 2 year green card expires early April next year. However, my wife has filed for divorce and it might come through before then. She had signed the I 751 last month and it was surprising to me that she filed for divorce. She now lives in Florida and I was supposed to mover there with her after I finished next semester of schooling. I have plenty of evidence showing that we have been together including checking and savings account, car insurance with both our names, health cards with our and her kids name, receipt of oil that I bought for the house, pictures together as well as the I 751 form she signed last month.

I'd like someone knowledgeable to tell me if there lies a problem when I send in to get my extension? Thanks.
 
Technically, you could file a "joint" petition but she would have to appear for an interview with you. That would probably not happen and if she did show up, it would probably not go well anyway.

You can file for a waiver, if eligible for one as described below. It would seem that (a)(1)(iii) does not apply, how about (i) and (ii)? If a divorce is not final at time of interview, USCIS might or might not grant a continuance, if not, the matter can be raised before an Immigration Judge and the IJ will grant a continuance but it probably wouldn't be needed by then.

8 CFR

§ 216.5 Waiver of requirement to file joint petition to remove conditions by alien spouse.

(a) General. (1) A conditional resident alien who is unable to meet the requirements under section 216 of the Act for a joint petition for removal of the conditional basis of his or her permanent resident status may file Form I–751, Petition to Remove the Conditions on Residence, if the alien requests a waiver, was not at fault in failing to meet the filing requirement, and the conditional resident alien is able to establish that:

(i) Deportation or removal from the United States would result in extreme hardship;

(ii) The marriage upon which his or her status was based was entered into in good faith by the conditional resident alien, but the marriage was terminated other than by death, and the conditional resident was not at fault in failing to file a timely petition; or

(iii) The qualifying marriage was entered into in good faith by the conditional resident but during the marriage the alien spouse or child was battered by or subjected to extreme cruelty committed by the citizen or permanent resident spouse or parent.

(2) A conditional resident who is in exclusion, deportation, or removal proceedings may apply for the waiver only until such time as there is a final order of exclusion, deportation or removal.
 
You file a "joint" I-751 during your 90 day window. As soon as the divorce is finalised, you send in a fresh I-751 requesting a waiver.
If the divorce is finalised before your 90 day window starts, you file a I-751 requesting a waiver the day your divorce is finalised.

I'd like someone knowledgeable to tell me if there lies a problem when I send in to get my extension?
 
But would I have to send in additional funds with the second I-751 form? Secondly, can you tell me the expected scenarios if I sign requesting a waiver; and isn't the form already signed by my wife a key piece of evidence in any event?
 
Yes!!!
But would I have to send in additional funds with the second I-751 form?

If requesting a waiver, you need to prove that the marriage was bonafide while it lasted. A statement from your ex-spouse will always help. You will need other proof too to back that up. USCIS gives highest weight to proof of financial cohabitation.

Secondly, can you tell me the expected scenarios if I sign requesting a waiver; and isn't the form already signed by my wife a key piece of evidence in any event?
 
Here is an article on topic. At this site they mention free initial consultation....http://www.ocimmigrationattorney.com/blog/?p=965

See the official memo on your circumstances: http://www.ailc.com/lawsregs/handbook/CRwaiver041003.pdf

Filing after Divorce or Annulment ©MurthyDotCom

A conditional permanent resident with a marriage that was terminated due to divorce or annulment must file for a waiver of the requirement of the joint filing of Form I-751. To obtain an approval of the I-751 and be granted unconditional lawful permanent resident status, the conditional permanent resident spouse must be able to show that s/he entered into the marriage in good faith.

The person seeking permanent resident status should expect to undergo an interview at the USCIS about the marriage. The USCIS will closely scrutinize whether the marriage was bona fide at its inception. The USCIS will review the divorce decree and complaint for matters that may be reflective of whether the marriage was entered into purely for immigration purposes or to perpetrate fraud against the United States citizen spouse or the USCIS.
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Found at: http://www.rreeves.com/print.php?newsId=381

If the USC spouse and conditional resident are separated or have initiated divorce proceedings at the time the petition is due to be filed, the USC spouse and conditional resident may still file a joint petition if the USC spouse is willing to sign the petition. If the USC spouse is not willing to sign a joint petition, the conditional resident is not eligible to file a petition requesting a waiver of the joint filing requirement based on divorce until the divorce is final, unless abuse is the basis for such a filing. However, conditional residents should file a good faith marriage waiver with a hardship claim even if the parties are not divorced prior to the expiration of conditional status. This will preserve the right to reassert the good faith marriage waiver after the divorce. Claims must be properly raised before the USCIS before they can be put before the immigration judge.
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The two requirements for the waiver under consideration are seperate, they are not two parts.

Good Faith
In most cases, the conditional resident will file for a wavier based upon good faith. Here the non-citizen must show that he or she entered into the qualifying marriage in good faith at the marriage’s inception. Both parties should submit extensive documentation to support the good faith commitment.

Extreme Hardship
Here the applicant must demonstrate that extreme hardship would occur to the non-citizen if the waiver is not granted and he or she is forced to leave the country. Hardship must be more than the normal results of departure and usually involve emotional, psychological, financial and educational problems.
 
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