Removal of Conditions with a troubled marriage.

[Zeng]

Is it possible for a person who was in a marriage, and is in the process of being divorced to Remove Conditions the two year card to the ten year card, without going for the spouse abuse plea?

[dnoblett]

Filing I-751 to remove conditions typically requires to be filed jointly, however there are a few conditions where the immigrant can file it by self.

 

Flexibility in Filing I-751s

 

Waiver Requests Filed Prior to Marriage Termination

 

A 2009 memo issued by Donald Neufeld, Acting Associate Director of the USCIS, addresses the lack of a category for those who married in good faith, but are separated or in the process of divorce. The memo instructs officers who review these cases to issue requests for evidence (RFEs) when they encounter I-751s requesting waiver of the joint requirement, if the couple was still legally married at the time of the filing. The RFE has an 87-day period for response and requests proof of termination of the marriage.

 

If the foreign national can respond to the RFE within the allowed timeframe, providing proof of the termination of the marriage in the form of a divorce decree or annulment, then the case can be approved. This is a significant variation from the general immigration requirements that an individual must be eligible for the benefit requested at the time of filing. This is one situation in which a slow processing time may work to the advantage of the foreign national, as it may provide enough time to finalize a divorce.

 

Joint Filings with Troubled Marriages

 

Another variation with I-751 filings involves couples who file jointly, but are legally separated or in the process of divorce. The USCIS reviews these cases carefully, as they view this as a potential indication that the marriage may not have been bona fide at its inception. In these cases, the RFE will request a copy of documentation proving termination of the marriage, and a request to have the joint petition treated as a request for a waiver of the joint filing. This allows the foreign national to obtain the waiver, if the marriage has been terminated, without having to re-file the I-751. Prior to the 2009 memo, a new filing would have been required.

 

If there is no response to the RFE, or the response does not establish that the marriage is terminated, the USCIS will adjudicate it as a joint petition. The result will depend on the evidence of a bona fide marriage. The case may be forwarded to a USCIS field office for an in-person interview to determine if it was bona fide at the time when the parties entered into the marriage.

 

Conclusion

 

It is often the case that a marriage is genuine at the outset, but ultimately does not survive. The current procedures avoid the need to speedily obtain a divorce before the I-751 filing deadline, if the marriage is not working for the parties. It also relieves some of the pressure regarding whether to attempt reconciliation or move forward with a divorce within a tight, imposed timeframe.

http://www.murthy.com/2013/01/07/options-for-conditional-permanent-residents-with-marital-problems/

[newacct]

So basically, you need to be finally divorced in order to do Removal of Conditions without your spouse. However, if you are in the middle of a divorce when the time comes up to do Removal of Conditions, the USCIS will give you more time to complete the divorce.

[Zeng]

Thanks, both answers, have helped me to understand, the process.

[Zeng]

Filing I-751 to remove conditions typically requires to be filed jointly, however there are a few conditions where the immigrant can file it by self.

 

Flexibility in Filing I-751s

 

Waiver Requests Filed Prior to Marriage Termination

A 2009 memo issued by Donald Neufeld, Acting Associate Director of the USCIS, addresses the lack of a category for those who married in good faith, but are separated or in the process of divorce. The memo instructs officers who review these cases to issue requests for evidence (RFEs) when they encounter I-751s requesting waiver of the joint requirement, if the couple was still legally married at the time of the filing. The RFE has an 87-day period for response and requests proof of termination of the marriage.

 

If the foreign national can respond to the RFE within the allowed timeframe, providing proof of the termination of the marriage in the form of a divorce decree or annulment, then the case can be approved. This is a significant variation from the general immigration requirements that an individual must be eligible for the benefit requested at the time of filing. This is one situation in which a slow processing time may work to the advantage of the foreign national, as it may provide enough time to finalize a divorce.

 

Joint Filings with Troubled Marriages

Another variation with I-751 filings involves couples who file jointly, but are legally separated or in the process of divorce. The USCIS reviews these cases carefully, as they view this as a potential indication that the marriage may not have been bona fide at its inception. In these cases, the RFE will request a copy of documentation proving termination of the marriage, and a request to have the joint petition treated as a request for a waiver of the joint filing. This allows the foreign national to obtain the waiver, if the marriage has been terminated, without having to re-file the I-751. Prior to the 2009 memo, a new filing would have been required.

 

If there is no response to the RFE, or the response does not establish that the marriage is terminated, the USCIS will adjudicate it as a joint petition. The result will depend on the evidence of a bona fide marriage. The case may be forwarded to a USCIS field office for an in-person interview to determine if it was bona fide at the time when the parties entered into the marriage.

 

Conclusion

 

It is often the case that a marriage is genuine at the outset, but ultimately does not survive. The current procedures avoid the need to speedily obtain a divorce before the I-751 filing deadline, if the marriage is not working for the parties. It also relieves some of the pressure regarding whether to attempt reconciliation or move forward with a divorce within a tight, imposed timeframe.

http://www.murthy.com/2013/01/07/options-for-conditional-permanent-residents-with-marital-problems/

So, tell me, if the marriage is bona-fide at the time of marriage, but it does not work out, would it be possible for the Chinese National to receive a 10 year Green Card, without having to ask for the GC because of abuse or other matters, as long as the marriage was bona-fide when married, and the former spouse and friends would attest that they believed the marriage was bona-fide when it took place?

[dnoblett]

So, tell me, if the marriage is bona-fide at the time of marriage, but it does not work out, would it be possible for the Chinese National to receive a 10 year Green Card, without having to ask for the GC because of abuse or other matters, as long as the marriage was bona-fide when married, and the former spouse and friends would attest that they believed the marriage was bona-fide when it took place?

Yes, if USC spouse holds no ill-will and only separated they should make a joint filing, and if an interview does come up, explain this at the interview. I have seen a few postings on VJ of this scenario.

 

Or the green-card holder can file the I-751 by self, again providing evidence that the marriage was in good faith, and could have the conditions removed.

 

Lastly in the case of a divorce, the I-751 can be filed shortly after the divorce is final with no need to wait until within the 90 days before the 2 year card expires.

[Zeng]

As is the case her two year card expired this past March, with the marriage in divorce court, looking at this May for a decree from the court terminating the marriage, was filed as a simple Irreconcilable Differences, if both parties agreed it could be done and over with, though that is not quite the case as my spouse has met an "ambulance chase lawyer" doing his best to complicate the divorce. which in a nutshell could be put aside, though her lawyer is complicating the divorce in an effort to get the ten year green card, misguided as his effort is. My question is, even though she is out of status and maybe has not sent in the I-751, would she still be eligible to receive the ten year card as the memo by Donald Neufeld, Acting Associate Director of the USCIS, mentions?

[dnoblett]

In this case probably will need a lawyer to deal with immigrations court. The I-751 needs to be filed within 90 days prior to the card expires. USCIS tends to be pretty strict about late filed I-751, it needed to be filed with waiver request prior to card expired and then deal with RFE for pending completion of divorce.

[warpedbored]

I recall one case where the US citizen spouse did everything he could to keep his wife from removing conditions on her own including refusing to grant a divorce before the 90 day window was over. As I recall she filed to remove conditions anyway before the divorce and with the help of a lawyer finally got her permanent green card on her own. The key is entering the marriage in good faith and not just to get a green card. Your case has extra complications because she didn't file before the conditional green card expired. She is going to need a good immigration attorney.

[Zeng]

Thanks for the last two answers, (also the other ones) the replies have cleared up my confusion, I hope for her sake she did file the I-751, though I do not know for sure, I would give the benefit of the doubt on whether her intentions when we married were bona-fide, although my Counsel thinks different. My feeling are I cared for this person otherwise I would not of gone through the tedious process of the K1 and all the other requirements plus the expense at the same time I'm not bogged down in should haves, would have, if a departing gift to her is that a 10 year GC is issued under the memo issued by Donald Neufeld, USCIS, so be it.

[warpedbored]

At this point it's out of your hands. It's between her and the USCIS. I advise that you concentrate on healing your emotional wounds and not worry about her. It's a hard thing to endure. Good luck and I wish you a rapid healing.

[Doug]

Isn't it just a form to be filled out and nothing really checked? I would just help her get it, but then Carl has a great great point about moving on. Glad you give her the benefit of doubt. No point in revenge, like the other guy or what friends or lawyers believe. Sometimes continual helping just messes with your emotions too much, but on the other hand...

 

Wish you the best. Many of us have been there.

[Zeng]

A song by Stevie Wonder "A Place in The Sun" comes to mind, by the mentioning of moving on. If my soon to be ex has filed the I-751, and USCIS goes along with the memo by Donald Neufeld, and they would like some verification from myself or our friends if the marriage was a bonafide I will tell them it is OK by me. Though I do not know how USCIS will go about it, and I'm not really all that concern, I had my attorney pass on to her attorney the memo from Neufeld, they can take it from there.