The Effect Of Separation Before Or While A Joint Petition Is Pending
If a marriage is still viable, but the parties are living apart, they may continue with the joint petition. But what happens if the marriage is no longer viable but not yet terminated? In this situation, the conditional resident may proceed with the jointly filed I-751 if the petitioning spouse is willing to sign on (or, if already filed, does not withdraw it).
If scorned, a US citizen spouse could, in their own right, submit a letter to USCIS withdrawing a jointly filed petition. Some submit a letter describing everything that went wrong in the marriage. Some may even go so far as to allege that the marriage was entered into for immigration purposes to prevent the immigrant from obtaining their unconditional resident card.
If the petitioning spouse withdraws the I-751 after divorce proceedings have commenced, the conditional resident must wait until the marriage is terminated to file a new I-751 under one of the waiver categories. The waiver I-751 can be filed before the marriage if officially terminated but know that a Request for Evidence will be sent requesting the final divorce decree.
If a couple is separated or divorce proceedings have begun but are not yet finalized, the conditional resident may file a waiver under one of the appropriate categories. Then, the USCIS will issue a Request for Evidence asking for proof that the marriage has ended.
This can become a problem when a marriage has long been over, but the couple has not completed proceedings to end the marriage.
A spouse may proceed on a waiver I-751 because they want to maintain their status, but if they have not completed the divorce, the government cannot grant a waiver. As a result, judicial termination of the marriage is one of the initial requirements for waiver eligibility.
The Effect Of Divorce While A Joint I-751 Petition Is Pending
The joint I-751 is no longer valid if the marriage is legally terminated during the pendency of the joint petition. As such, a conditional resident should notify USCIS service center that they are divorced by mail with a request to proceed on a waiver petition and a copy of the divorce decree as soon as it becomes available.
If USCIS discovers that the conditional resident is legally separated, or divorce proceedings are pending, they will request additional evidence. This allows the conditional resident 87 days to provide a copy of the final divorce decree or annulment along with a waiver request.
If the request to convert the joint petition to a waiver petition is approved, the conditional resident may not be required to re-file their I-751. However, if the USCIS suspects marriage fraud, the case will be sent to a field office to conduct an interview.
When a case is submitted to a field office for an interview, it will cover information about the separation or pending divorce…
- If both spouses appear at the interview, (as required under a joint petition), and the marriage has not been legally terminated, the I-751 will be adjudicated on its merits under established procedures.
- If the conditional resident does not respond to the request for evidence, the I-751 will be denied for failure to respond to the Request for Evidence.
- If a joint petition has been successfully converted to a waiver petition, the waiver will be adjudicated on the bona fides of the marriage
- If the marriage has broken down but has not been legally terminated, you must hope that the petitioning spouse did not withdraw the joint petition or submit a letter discrediting the conditional resident.
If the petitioning spouse does not continue to cooperate in appearing for the interview, the petition will be denied and referred for immigration proceedings. This is because a joint appearance at a scheduled interview is another requirement for a joint petition to be approved.
With the guidance of a skilled attorney for Immigration Cases In Virginia, you can have the peace of mind that comes with knowing that we’ll make it look easy.
For more information on the Effects Of Separation While A Joint Petition Is Pending, an initial consultation is your next best step. Get the information and legal answers you seek by calling (703) 249-9055.