Loosing hope, need help. GC thru Marriage. at point of divorce!

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byehello

Registered Users (C)
I came to USA in 2000 on B2. My father got H1 and I was on H4. I went to high school and then to university. During my time at the university I met a girl who lived in another city 200 miles away and was going to college there. It was a love at first sight and I was deeply in love with her. In Dec 2005 we got married while she was still going to college in her city and I was in my city. Her family and my family were both happy for us. We did celebrations in both cities. I filed for green card based on marriage and got my EAD and then my conditional green card. Our marriage has gone down the drain due to differences and those difference cannot be worked out, as we have tried to work them out several times during our marriage. My conditional green card is expiring in 6 months from now. During our marriage she lived in a different city as she was going to college there. We would meet during vacation and on weekends. I would drive there mostly as it was only 200 miles away. We have a joint bank account and we filed our yearly joint tax return in April 2007. I have added her on my cell phone plan. I have life insurance and she is a beneficiary of it. But we do not have any property in our name as I was living with parents while going to college and she was living with her parents while going to college in her city.
My intensions were not to get the green card, we got married and thought that it would be a happily ever after, but things do not always work out that way you plan it. Due to differences we have decided to part out ways. Now her family wants to file for an annulment and wants me to sign it. I have a few questions; any help will be highly appreciated. Thank you.
1. Should I sign the annulment petition or should I get a divorce?
2. Should I get the divorce first and then file for removal on condition, or can I file while the divorce is undergoing. As my green card expired in 6 months from now and I have to file to remove condition 90 days before the expiration of the green card.
3. How can I prove that the marriage was in good faith?
4. What are the chances on my approval if I file i-751?
5. What are other possibilities if I want to change my status and continue to reside in USA.
Thank you for all the help in advance. I really appreciate as I am in too much stress because I have a life here and don’t know where to go if something happens and I have to leave this country.
 
1.- DO NOT SIGN THE ANNULMENT. That voids the basis for your GC and your chances of getting the conditions on it removed. GET A DIVORCE.
2.- Get the divorced finalized, as soon as that is done, file for removal of conditions. It does not have to be within 90 days of expiration, but it can be done as soon as the divorce is final, but before the GC expires.
3.- With evidence.
4.- Depends on your evidence.
5.- Have you maintained your student status? maybe H1?
 
Thank you for your quick comment. I have not maintained any other status, as once approved for green card. I had a questions regarding your comments. what if the divorce does not finalize and takes time and the green card is coming to the expiration. can i file while the divorce is ongoing or do i have to wait until the divorce is finalized. it would be best if it is done and i am trying to work with the other side to get the divorce and get it finalized but just in case it takes time i would just like to know that i can still apply to lift the condition with an ongoing divorce proceeding? Once again thank you very much for your response.
 
byehello said:
Thank you for your quick comment. I have not maintained any other status, as once approved for green card. I had a questions regarding your comments. what if the divorce does not finalize and takes time and the green card is coming to the expiration. can i file while the divorce is ongoing or do i have to wait until the divorce is finalized. it would be best if it is done and i am trying to work with the other side to get the divorce and get it finalized but just in case it takes time i would just like to know that i can still apply to lift the condition with an ongoing divorce proceeding? Once again thank you very much for your response.
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That's a very interesting point - your GC is expiring and you need to file, but you will in all likelihood still be in the middle of a divorce. There is a chance that the divorce could be finalized prior to your filing, and if so, then you can file yourself.

But - this is a good question for others as I don't have any answers. What would the OP do if his divorce is still being processed when his GC expires or when it gets to be the time where he needs to file to get the conditions removed?

Also - as stated earlier - DO NOT SIGN AN ANNULMENT. Besides, isn't there some statute of limitations on annulments - if not a real SOL at least a practical SOL? It's been 2 years since the wedding...
 
He can either file jointly, if his wife cooperates, or he has to wait for the divorce to be final. USCIS does accept annulment documents too for the purposes of I-751s.

TNguy78 said:
What would the OP do if his divorce is still being processed when his GC expires or when it gets to be the time where he needs to file to get the conditions removed?
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From form I-751:

[Y]ou may apply for a waiver of [the] joint filing requirement if:

[...]

2. You entered the marriage in good faith, but the marriage was later terminated due to divorce or annulment;

[...]

I suppose someone can still enter a marriage in good faith that was later annulled. You can't know the future in the past. Or something like that. ... Let's say the spouse of the intending immigrant was later found to still be legally married to someone else, unknowingly to the immigrant, and it is found that their marriage was never legal. The immigrant could have still tried to enter that marriage in good faith.
 
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Thank you all for your input and suggestions. It is a great help. What I have understood from other discussions and after consulting a lawyer, is that an annulment MAY NOT harm the lifting of the conditions but WILL definetely harm when it comes time to file for naturalization. The form I-751 itself has an option for filiing independently based on divorce/annulmet.

The annulment does require some extra ordinary conditions like being blood related or being mentally challenged, and none of those conditions apply to my marriage and I am not sure what grounds my spouses family would like to file the annulment. I have asked them but they have not replied. I am NOT going to sign the document as it will harm me.

They are not willing to co-operate with me and help me out. My best option would be to get them to sign the divorce papers and file those and hope that the case can be decided and I can have the decree in my hand before the 90 day window. I have the read the rules to the divorce conditions for my state and it says that it can take 3 months if both parties agree and there is no problems on division or land and child custody and stuff like that. I am hoping that they will not create any more problems for me.

Once again thank you for your replies as it has helped me calm a little and know that there are people out there who are willing to help and give proper advise. It would be best for my to wait to the divorce decree in hand before I file, I will go thru a lawyer as I will have some support by my side.

TNguy you said that you do not know if I can file during the ongoing divorce, If you can try to find any answer for that, then that will be very helpful.

Thank you.
 
There's some information for you here. Basically, the strategy appears to be to file another I-751, either one where both spouses sign to remove the condition, or one based on hardship, for instance. Then, the second I-751 is filed when the divorce papers are available.

Google: divorce not finalized I-751
 
From Wikipedia, the free encyclopedia (link: http://en.wikipedia.org/wiki/Annulment)

Annulment is a legal procedure for declaring a marriage null and void. Unlike divorce, it is retroactive: an annulled marriage is considered never to have existed.

In strict legal terminology, annulment refers only to making a voidable marriage null; if the marriage is void ab initio, then it is automatically null, although a legal declaration of nullity is required to establish this. The process of obtaining such a declaration is similar to the annulment process. Generally speaking, annulment, despite its retrospective nature, still results in any children born being considered legitimate in the USA.

Grounds for a marriage being voidable or void ab initio vary in different legal jurisdictions, but are typically limited to fraud, bigamy, and mental incompetence including the following:

Either spouse was already married to someone else at the time of the marriage in question;

Either spouse was too young to be married, or too young without required court or parental consent. (In some cases, such a marriage is still valid if it continues well beyond the younger spouse's reaching marriageable age.)

Either spouse was under the influence of drugs or alcohol at the time of the marriage;

Either spouse was mentally incompetent at the time of the marriage;

If the consent to the marriage was based on fraud or force;

Either spouse was physically incapable to be married (typically, chronically unable to have sexual intercourse) at the time of the marriage;

The marriage is prohibited by law due to the relationship between the parties. This is the "prohibited degree of consanguinity", or blood relationship between the parties. The most common legal relationship is 2nd cousins; the legality of such relationship between 1st cousins varies around the world.

Prisoners sentenced to a term of life imprisonment may not marry.

Concealment (e.g. one of the parties concealed a drug addiction, prior criminal record or having a sexually transmitted disease)

The guilty party -- the one with responsibility for having caused the defect in the marriage -- is ordinarily disentitled to request a declaration of nullity. The victimized spouse may ordinarily apply for innocent spouse relief. The fact that a marriage was a nullity ordinarily does not prevent an innocent spouse from collecting the financial benefits of marriage, such as the rights to community property, spousal support, child support, and equitable contribution to attorney fees for litigation expenses.
 
Well.. this is what I found by reading the I-751 instructions - keep in mind I've never gone through the I-751, so this is just my interpretation.

If you are still married, the petition should be filed jointly by you and the spouse through whom you obtained conditional status. However, you may apply for a waiver of this joint filing requirement if:

1. You entered the marriage in good faith, but your spouse subsequently died;

2. You entered the marriage in good faith, but the marriage was later terminated due to divorce or annulment;

3. You entered the marriage in good faith and have remained married, but have been battered or subjected to extreme cruelty by your U.S. citizen or permanent resident spouse; or

4. The termination of your status and removal would result in extreme hardship.
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Since I would not want to condone any action that would fulfill #1 - I'll just leave that alone. (Come on guys - lighten up - I was just kidding :D)

For #2 - This looks like it requires the divorce or annulment to be finalized prior to filing. And you can file this anytime from when the divorce is finalized and prior to you being removed.
Filing with a request that the joint filing requirement be waived. You may file this petition at any time after you are granted conditional resident status and before you are removed.
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This would allow it to be filed after the 2 years - but this seems to be contrary to the next point.
Effect of not filing. If this petition is not filed, you will automatically lose your permanent resident status as of the second anniversary of the date on which you were granted conditional status. You will then become removable from the United States. If your failure to file was through no fault of your own, you may file your petition late with a written explanation and request that USCIS excuse the late filing. Failure to file before the expiration date may be excused if you demonstrate when you submit the application that the delay was due to extraordinary circumstances beyond your control and that the length of the delay was reasonable
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Now - if you waited until the divorce was final and you filled immediately after it was final, then you could use the explanation that your failure to file was no fault of your own since you couldn't file jointly because your ex would not cooperate, and you couldn't apply for the waiver because your divorce wasn't final yet. And if you file immediately after, then you would also have shown that the delay was reasonable. If you can truly get your divorce finalized in a reasonable length of time, then this might work. But I would want others to comment of this first, since this is just my opinion.

For #3 & #4 - you would need lots of extra proof to show Evidence of abuse (#3) or evidence of hardship (#4) which might be hard to prove.
 
But what if the annulment was due to fraud of the US citizen spouse? Then the intending immigrant still would have entered the marriage in good faith. But, I would agree not to sign these annulment papers without obtaining legal counsel on the consequences of signing. Essentially, I suppose you don't want to be declared the party (or one of the parties) guilty of fraud in such papers.

Any reason why your spouse seeks the annulment instead of divorce? Is this about money? Can you come to some other agreement?
 
First of all, what would be the basis of the annulment?...that's is not on her parents to decide would be in the authorities who will granted it since one of the "factors" to get married in the first place should not be present e.g. be legally single, etc.

The consequences of an annulment are big, first of all, from what is considered "marital" assets or things can be void and then would be different than in a divorce. Not only that, YOUR green card was given to you BASED on a legit legal marriage. In that case everything can be revoke (because yes, a residency can be revoke, take it away...).

If your marriage was in bona fide and there are no other issues except for the ones that you both are not agreed upon, then you both (can even save money on lawyers) can file for divorce together...and by the way check the familiy law in your state/county because varies. Some states need legal separation period, other factors, etc.

The law is pretty clear, if you are still married you suppose to file together your I-751, if you are legally separated or on divorce proceedings you should not file together, you should wait to get your divorce decree in hand so you can file alone. And here comes the limbo...if your divorce proceedings take over the expiration date of your card, then you are put on removal procedings and get in front of an immigration court, in which you must demostrate your papers that you are waiting for your divorce decree (and that's thinking in a smooth non contested divorce...if it's the other way can take years!), if you have a good lawyer your residency should be extended until you have a final decree and able to file alone (that's on the best cases). IF you file together, and she file or you file later on for divorce, you should ammend your original joint petition since you are not longer together but you have to have your divorce decree.

If you file together and the divorce is not over yet pray that the divorce is not final until you get approved...but most of the cases, you will get your divorce decree before your 10 yr green card is approved. And anyway by law you must state that you are on divorce proceedings and then amend your original petition with the waiver.

You need TWO lawyers, a family law lawyer and an immigration lawyer that both explaining you the consequences of the both things.

Good luck,
 
Of course he can file a late I-751 - after termination of permanent resident status while in removal proceedings. Actually, the relevant Yates memo to this says the person would be able to argue their case before an immigration judge and be issued a temporary I-551 while the case is pending. However, the lawyer's advice I linked above is to not let it come to this, since a notice to appear takes a long time to be served, causing a significant time period when the person is not in permanent resident status, can't work etc. inbetween losing their status and regaining it.
 
OP, are you legally separated or just living apart at the moment? Do you think she would sign the I-751 jointly with you if you requested it?
 
Thank you all again. I sincerely thank you, it is hard to find people these days who can help for small things and you people have helped me with one of the biggest problems of my life. So thank you all very much.

The spouses family wants to get an annulment as it will not show of their daughters record that she was married earlier. That is the only reason they have provided me with. This case is not about money or any other financial gain. We liked each other, fell in love and decided to get married. Things did not work out, we tried, but it got to a point where she wanted to go her way and so did I.

We are living separated. Not have met each other in over a month. I tried to call her and requested her to sign it jointly and her family has denied that and said that she will not sign the papers and she will not come to interview if called. They have also asked me to not call her in the future and talk to her. They would like to get an annulment but nothing has started yet. We have only talked over the phone and they said that they would like an annulment and I have informed them that I will not sign the annulment as we entered marriage in good faith and I will only get a divorce. No official paper work has started yet. We are waiting to come to final decision as to how we want to end this marriage. There is no complication regarding money or land, as of yet atleast. They are not demanding anything yet.

I have consulted an immigration lawyer who has asked me to consult a family lawyer to understand divorce and annulment better. I would like to find a lawyer or firm who can handle both situations. I have gathered some information thru google and a lot of information for this discussion. I will continue to read and find out more about the situation and also post any new information if I can find that can help someone else out in the future.

Thank you once again, and if you guys get any more information please do let me know. Have a prosperous new year.

Thank you.
 
byehello said:
The spouses family wants to get an annulment as it will not show of their daughters record that she was married earlier. That is the only reason they have provided me with.
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I hardly find that a compelling enough reason for any judge to grant an annulment.

While you are waiting for everything to shake out - start preparing your documents to show the marriage had been entered into in good faith - you will need these later and it would be best to collect whatever documents need now while you may have full access to them.
 
Her family's motivation seems a little strange to me. They want to make it look as if she's never been married even though she was married? What's the point of hiding that, and from whom?

It seems to me you ought to try to start divorce proceedings asap, keep trying to contact her about the joint removal, or her lawyer, but don't take what her parents say for granted. Get it in writing that she won't sign the removal of condition, if you can.

If the divorce takes too long and your wife does not sign your removal of condition, file either a hardship or a battered spouse waiver or both (have a lawyer help you, for sure). Hopefully, while they are pending, your divorce will be finalized, and you can withdraw them at that point and send your waiver based on divorce. The key is to timely file for a waiver, of course not a frivolous one but with some evidence, so your permanent resident status is preserved, and just pick one or more of the waivers that applies best to your situation; you can pursue them simultaneously.
 
Did your in-laws act as sponsors on your original I-864? That financial support document ties them to you financially, possibly despite a divorce, but maybe not through an anullment. That may well be their motive for not wanting you to receive permanent residency based on a marriage to their daughter. Are they your sponsor?
 
I don't think an annulment releases the sponsor from the contract; it's not one of the listed items in I-864 that ends the sponsorship obligation.

OP, how about you send your wife and in-laws a nice letter that, if they don't cooperate in removing your condition the fastest way, you'll seek to remove it on your own and then might decide to go on welfare for a couple years or decades. ;)
 
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