Would legal separation allow my spouse to get green card off of my application?

K

kkrathi

Registered Users (C)
My wife and I have decided to move on separately. My wife is a nice person. It is just that the marriage is not working out. So I don't want her to lose a chance to get the green card off of my petition that my employer filed. We have already received our EAD and are awaiting 485 update. I know that if we divorce immediately, that would certainly put her out of status. I was wondering if we went for legal separation, would that allow her to continue to remain on my petition? We can then divorce once she gets a green card. Could anyone please confirm this or has experienced something similar?

Krish
 
What petition did your employer file? Do you have a green card or are you a citizen? Did you guys marry in the states or outside? How long have you been married?

I'm going to assume that you guys were married in the US and you filed for an AoS for your wife... in which case - you will have a two year interview after your interview date which you *both* must show up to. You must file a form (I-751 I believe) stating that you are still married and that you are still living together, etc.. etc.. this means that your wifes GC (assuming she has or gets it) will be a temporary GC (conditional) until that time period is over. One year beyond that, she could file for citizenship (assuming you are a citizen).

I'm not too sure about this next bit, but if you are not a citizen (sounds like you were sponsored by a company via H visa of some sort) rather a permanent resident and they are filing for her GC I don't really know how it works, but it may be a similar situation... in that you'd have to wait until she was approved before divorce. Then maybe she could keep her GC...

I'd be interested to see what others say on this forum... remember, always seek professional advice in these scenarios and what I say is not in any way legal advice. It's just an opinion on what I've gone through and what I've read as a laymen.
 
Sound to me like she's filed an application as the derivative beneficiary of an EB based petition, is that correct? So - to my knowledge you had to submit no evidence of a bona fide marriage (other than marriage certificate), no interview, GC will be unconditional, etc. correct?

There's some information about this here and here. For the legal separation it appears to depend on if it will be converted to divorce automatically in the state that you're seeking the legal separation, whether USCIS will consider it as a termination of the marriage for immigration purposes.

That said, it still doesn't sound right to me - someone with a family based petition would be in a heck of a trouble getting a legal separation during their AOS, so I don't see why it's different for derivative beneficiary cases. But, maybe it is! Anyway I wish you and your wife the best of luck.
 
austriacus said:
So - to my knowledge you had to submit no evidence of a bona fide marriage (other than marriage certificate), no interview, GC will be unconditional, etc. correct?
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Yup.

That said, it still doesn't sound right to me - someone with a family based petition would be in a heck of a trouble getting a legal separation during their AOS, so I don't see why it's different for derivative beneficiary cases.
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Generally speaking, EB immigrants don't engage in marriage fraud and derivatives don't get the same ability to break most US immigration laws with impunity that Immediate Relatives do, so as a result the marriages aren't as scrutinized and there isn't the notion of Conditional Residency.

I would be cautious, however - one should be scrupulous in telling the truth about one's status if ever asked. They are under no obligation to tell USCIS that they are legally married but separated, but under no circumstances should either attempt to conceal this fact.
 
The OP is being sponsored for an employment based GC and his wife will get a GC too. What two year interview are you talking about? If you talking about an interview for an I-751, then only 10% couples are called for it. However that does not apply to the OP in any form or shape.

bbqchickenrobot said:
I'm going to assume that you guys were married in the US and you filed for an AoS for your wife... in which case - you will have a two year interview after your interview date which you *both* must show up to.
Click to expand...
 
Thanks for all the responses. This is an employer based petition. And I understand that divorce would definitely terminate her process. I also want to be obviously honest with INS. So I thought of this whole legal separation route. If we are only legally separated but not divorced AND if that legal separation doesn't automatically convert into divorce, would she be legally allowed to remain on my petition until the GC arrives?

Krish
 
According to the information I read about this, the answer is yes, but get a lawyer's opinion too. (I'm assuming you have a lawyer for your EB petition that can give you an opinion.)
 
If she is legally married to you she is still a derivative of the petition...so she still can be granted the benefit and let's face it apparently here nobody hates each other...at the contrary you are like being honest to each other. Criteria of AOS for work cases are not subject to the same criteria than family based green card...regarless of how it looks. Separation is not same as divorce...actually USCIS only takes in account divorce decrees, so she should be fine as long your divorce (if you file for it) is not final BEFORE the GC is granted.
 
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