First I'm sorry if I was misunderstood on the previous thread on the same subject,which I couldn't delete.
The case:
I am married to a USC for 4 yr 9 mo,we lived together for 1 yr before the marriage,(we been together for almost 6yr)Me and my son got our TRP 4 yr ago,BUT,"I am not leaving together with my wife for the past 6mo",and she already filled for divorce last december(no fault).
I have an interview next week,for the I-751 which was "jointly filled" but my wife refuses to go.I am trying to get all the papers I can to bring to the interview,and I will not lie or hide any details regarding our actual position in this marriage.
The questions:
1-Do I have any chances of still have my condition removed ?

2-What is the criteria in my case ?

3-If the result of the interview is negative,do I have the right to appeal?

4-After you answer this will I be able to sleep ?

This message has been edited. Last edited by: hhh,

hhh,

USCIS-CSR appears to be avoiding this question, so let me see if I can help. First, there was nothing wrong with your question as this situation occurs from time to time. Recently, in late March 2005, NSC issued a memo on specific I751 situations and revised procedures.

If the petitioner and beneficiary filed an I751 petition jointly, but separate before a decision is made on the I751, the beneficiary should notify the NSC that he/she is currently separated by mailing the explanation to the Service Center (this memo did not specify if all Service Centers are requesting this procedure).

You should be aware that statutory regulations prohibit an AO from adjudicating a joint petition if the parties have divorced. In cases where the parties have separated, some district offices handle the matter administratively by continuing the case for a number of months so that the divorce can be finalized.

Once a divorce decree is available, the alien would request that the joint I751 be withdrawn and replace it with an I751 waiver, if applicable, under one of the various waiver provisions.

In your case an interview has been scheduled and the case has not yet been adjudicated. I would attend with a copy of a letter in hand, prepared to present it to the AO. Since your wife refuses to accompany you inform them of your separation and your wife's recent petition for divorce.

There is no real statutory basis addressing couples in the midst of divorce, however, these are some guidelines the NSC has distributed.

HTH

P.S. Yes, if denied, you could appeal.

Sappyconifer:
Thank you very much for your attention on both of my threads.
I just don't understand why this question is being avoided,but anyway.
Thank you for the heads up about the "memo",somehow your reply brought me some comfort,and I think that's what I was looking for.
I stated before,I was doing some research,but was still confused,and I guess b/c every case is different,and the same case can have different results dependind on who sees it.
I would like to have more opinions here,but I guess that won't happen

You've to understand something, USCIS-CSR has already stated he'll only provides procedural information. The question you're asking is more of a what-if scenario, with no clear answer. Ask 100 IIO, and you might get 100 variations as well.

Personally, I would delay the interview process until the divorce decree becomes final. Afterward, file the I-751 waiver. Reason is, if your wife refuse to accompany to the meeting, and the adjudicating officer could easily draw the conclusion that the marriage is no longer valid,and terminate your temporary residency (no valid base for it anymore). With the I-751 waiver in place, you would have a protection against such event.

Just my 2c to offer a different perspective from what sappyconifer has said.

marmaduk,

This is a tricky area of the process, and one that is best served by consulting a qualified immigration attorney to make sure that hhh preserves his right to file a waiver when the marriage is terminated.

However, remember that hhh has conditional residency already. He has a responsibility to petition to remove conditions prior to the expiry of the CPR. Determination that the marriage is no longer valid wouldn't terminate hhh's residency. Under the regulations a terminated bone fide marriage is a qualified basis for a waiver, but not until a decree is available.

I'd speak with an attorney to make sure, but my gut reaction would be to attend the interview and advise the AO that the spouse just petitioned for divorce and refuses to attend. Hopefully, the AO will continue the case sufficient to allow hhh to get a divorce decree. Matter of Tee, 20 I&N Dec. 949 (BIA 1995) - An alien becomes statutorily ineligible for approval of a joint petition under section 216(c)(1) of the Act where the marriage has been terminated prior to adjudication of the petition.

Thank you "Sappyconifer and Marmaduk"
Marmaduk:At first I was in shock,b/c everything changed really fast between me and my wife,confused,I started this research,I was in doubt to either,go to the interview, or ask to postpone until I have the final divorce decree,exactly as you suggested,but somehow,I think in order for me to postpone it,I have to state a "reason" for postponing,and this "reason" could be "misleading" which in this case could be easily be interpretated as "failure to comunicate changes in my marital status",I know that doing this,It would be nothing more than "CYA"or since I'm talking about myself,it's "CMA",but, I decided to believe in the consideration factor and the "Adjucator power",since my whole case is genuine,meaning,I have nothing to hide.
Having this in mind,I'll stick with the truth,and go from there.
I really appreciate your replies,and next week I'll post the results of my interview.
Honestly
hhh

This message has been edited. Last edited by: hhh,

Good luck and please tell us the result. Like Sappy said, this is one of those area where immigration has no clear step-by-step definition on what need to be done. All that's left to do is to make a calculated and informed decision and proceed from there.

HHH,
You need to have an affadavit signed and notorized by a US notary public explaining the situation, I may suggest an immigration attorney because of the lack of time. Further, I would reschedule your appointment for another time stating you would not be able to make it. This could help you consult with an immigration attorney for free to see if you need to get one. If there were any execeptions such as spousal abuse or a extra marital affair, then I would get that documnentation and provide that to the interviewer.

If the application is denied, there is an appeals process through the immigration court as long as you filed it within the acceptable time frame which is usually 90 days.

Generally, regardless of why you are filing the I-751, this should be done within 3 months of the expiration date of your conditional status. If you file after that date, or not file at all, then you would be considered abandoning your status. This means you would either have to refile the I-485 on another criteria or leave within 30 days. But you may get a waiver since you have a minor child and arrangements would have to be made.

Sorry for my delay on posting the results:
Well,I went to the interview and the results were exactly as "Sappyconifer" described on his first post on this thread,plus,I now have one more year of extention of my TRP.
I am now waiting for another letter from the office to appear,theoretically in 90 days for another interview,in which I am supposed to have the divorce decree in hand and another I-751 with the waiver,to replace the original one at the time of the said interview,and if on the next interview,the divorce is not finalized yet,the IO said that,they may postpone it again.
So far,I am very happy with my decision of going with the true,and glad to have you guys here to post the ideas and facts involving this issue.
I'll keep you all posted as it comes,and also post answers for the other ppl questions.
Thank you all.

Glad to hear it went well. Keep us posted.

Hello everyone,somehow,I can't find my last post here about when I went to the Immigration office with the divorce decree and the I-751 waiver in hands,anyway,that was all right,they only told me to mail it along with another money order,so I mailed in the same day,about three weeks later I received a "receipt notice" giving me one more year extention to expire by Feb '07...
...Well,about three weeks ago,I received an appointment letter from the Immigration to my last interview for the I-751 waiver,and the interview was last week,so I had to grab all my supporting documents,pics,etc,and go there to face my destiny.
The IO was very polite but very serious,asked me a few questions about the dates,asked to see the evidence documents and pictures I had,and asked me random questions and when I least expected,the IO said that my PR was granted,I should receive the new card in a few weeks,and I was eligible for the Naturalization in Feb'07.
Needless to say,I am very happy,and will see them pretty soon with my Citizenship application.

I wanted to thank all of you that posted here and any other thread I started.
Please,accept my appologies for not being here posting as I stated in previous posts.

This is not a good bye letter,I will try to be here and drop my .02 cents

quote:

Originally posted by hhh:
Hello everyone,somehow,I can't find my last post here about when I went to the Immigration office with the divorce decree and the I-751 waiver in hands,anyway,that was all right,they only told me to mail it along with another money order,so I mailed in the same day,about three weeks later I received a "receipt notice" giving me one more year extention to expire by Feb '07...
...Well,about three weeks ago,I received an appointment letter from the Immigration to my last interview for the I-751 waiver,and the interview was last week,so I had to grab all my supporting documents,pics,etc,and go there to face my destiny.
The IO was very polite but very serious,asked me a few questions about the dates,asked to see the evidence documents and pictures I had,and asked me random questions and when I least expected,the IO said that my PR was granted,I should receive the new card in a few weeks,and I was eligible for the Naturalization in Feb'07.
Needless to say,I am very happy,and will see them pretty soon with my Citizenship application.

I wanted to thank all of you that posted here and any other thread I started.
Please,accept my appologies for not being here posting as I stated in previous posts.

This is not a good bye letter,I will try to be here and drop my .02 cents

Wonderful news! Congradulations, hhh

Thank's Sappy...

...I am feeling good now