Divorce before I-751 adjudication--Confirmation Please!

[KaCee]

I have seen the following statement or something very similar on numerous discussions...

...If divorce is finalized before adjudication the alien spouse must file a waiver of the joint 751 and the joint 751 is no longer valid....Just to be clear, the joint 751 was filed and divorce happens afterwards and is finalized before adjudication.

Can someone clarify if this is actually the case because I cannot find one legal reference to substantiate the above?

[HBKHBK]

You need to resent the I 751 Form as a WAIVER.

Put extra sheet of paper explaining you sent the jointly filed I751 but got divorce after sending it.Therefore you are sending another I 751 waiver.
I am not sure though,if you have to pay again the filing fee, and resent all your paperwork such as evidence of marriage etc.
But bottom line, if your I751 would have been approved before,the divorce was final,you would not have to do anything and would have been good.Now though you have to file it again...and remember to put a copy of your divorce-decree in the I 751 waiver,when you resent it.

[sappyconifer]

Originally posted by KaCee:
...If divorce is finalized before adjudication the alien spouse must file a waiver of the joint 751 and the joint 751 is no longer valid....Just to be clear, the joint 751 was filed and divorce happens afterwards and is finalized before adjudication.

NSC issued a memo, dated some time in March, 2005 with specific instructions regarding how to file the I751 in various scenarios. It was later reiterated in a memo in 2006.

There is also a full article which appears on ILW by Wheeler, an excerpt of which I quote below:

It is not unusual for the conditional resident to start out with a joint petition and then later change it to a waiver petition, based on a lack of cooperation by the U.S. citizen spouse or the entry of a final divorce. In a December 27, 2004 memo (NSC Flash #6-2005) the Nebraska Service Center advised applicants to notify the NSC if they had filed a joint petition but subsequently separate. The NSC would then forward the file to the local district office to schedule an interview. The NSC did not insist on the filing of a new I-751; the joint petition could still be adjudicated as long as the marriage had not been terminated. But if the couple filed a joint petition and subsequently divorced, the NSC reminded the alien that he or she must submit a new I-751 under the good faith/waiver ground. The same procedure would presumably need to be followed if the alien started out filing under one waiver ground (e.g., battered spouse or extreme hardship) and then obtained a final divorce. If he or she wanted the waiver adjudicated under the relatively easy good faith/divorce standard, then the alien would need to file a new I-751 claiming that ground.

[KaCee]

Thank you sappyconifer for the memo/legal reference!

[HBKHBK]

LOL instead of writing a book,just say "follow what HBKHBK said" lol
anyway,some guys wanna be toooo specific,its like asking if the color is blue,and instead of hearing a Yes or No answer,you hear a whole explanation how the color blue came about lol

Anyway, I anewered the question perfectly and properly..and got to the point.

[sappyconifer]

Originally posted by HBKHBK:
LOL instead of writing a book,just say "follow what HBKHBK said" lol
anyway,some guys wanna be toooo specific,its like asking if the color is blue,and instead of hearing a Yes or No answer,you hear a whole explanation how the color blue came about lol

Anyway, I anewered the question perfectly and properly..and got to the point.

Not to appear disrespectful, but your recommendation neither answered KaCee's post nor did it outline the proper procedure for this circumstance.

One has to withdraw the original joint I751 and submit the waiver. In that event, I would suspect the filing fees and all corroborating evidence be attached to the waiver. A fee credit from USCIS? Unlikely, since the joint I751 submission was to ensure the possibility of continued status until the alien sorted out his/her marital issues.

[HBKHBK]

Sappy,
not disrespectful at all buddy.Its cool.
I just read some stuff on the USICS...

I think,if she or they sent enough and lots of evidence for the jointly filed i751,she should not sent the same evidence again,since when they pull up her file,they'll see the evidence from the jointly,since either way,its same evidence.
But as far the fee goes,I am not 100% sure,but I assume you are right.INS would charge you eachtime for sending a new form.

[KaCee]

I think it is also important to note that I asked for a legal reference. No disrepect to anyone. I just wanted proof and not just someone's interpretation.

[sappyconifer]

NSC Flash #6-2005

Further Clarification from NSC on the Effect of Separation/Divorce on I-751
April 11, 2005 NSC Flash #19-2005

Revised Revision to NSC Flash #6-2005

Please note that additional clarification has been provided in regard to NSC News Flash #18 dated March 30, 2005 that amended News Flash #6 dated December 27th, 2004.

The Effect of Separation/Divorce on Pending I-751 Petitions to Remove the Conditions on Residence


If the petitioner and beneficiary filed an I-751 petition jointly but:

~ If the petitioner and beneficiary are divorced at the time the I-751 should be filed, the beneficiary should file the I-751 (only s/he needs to sign) and mark "d" in Part 2..

If the petitioner and beneficiary filed an I-751 petition jointly but:

~ separate before a decision is made on the I-751, the beneficiary should notify the NSC that he/she is currently separated by mailing the explanation to the NSC at PO Box 82521, Lincoln NE 68501-2521.

~ get divorced while the I-751 petition is pending, the beneficiary should notify the NSC that he/she is divorced, and submit a copy of the divorce decree to the NSC at PO Box 82521, Lincoln NE 68501-2521.

If the petitioner and beneficiary are separated or have initiated divorce at the time the I-751 is due to be filed, the petitioner and beneficiary may still file a joint petition if the petitioner is willing to sign the petition. If the petitioner is not willing to sign a joint petition, the beneficiary is not eligible to file a petition requesting a waiver of the joint filing requirement due to divorce until the divorce is final UNLESS abuse is the basis for such a filing. The alien's status may be terminated because s/he has been unable to file a timely I-751 and s/he may be placed in removal proceedings.

Petitioners and beneficiaries are reminded that required supporting documentation must accompany all petitions.

[FooserX]

Can anyone give me the official link for this post above?

[ProudUSC]

Originally posted by FooserX:
Can anyone give me the official link for this post above?

http://www.immigration.com/newsletter1/nsconi751.pdf

[speed_025]

http://www.avlawoffice.com/CIS_Memo_...c_27_2004.html

[FooserX]

So....from the looks of this, me and my wife can start our divorce...I can sign her petition I751, and all will be good...

No?

Worst case scenario we have an interview, and we convince them that it was a normal marraige.

Any thoughts?

[FooserX]

From one of these, it looks like we can start the divorce, and everything will be okay. (NSC Flash #19-2005

From the FLASH 18-2005, it looks like we can NOT file a joint petition if we start divorce.

That is some crazy contridiction!

[FooserX]

Okay, just talked to an immigration attorney, and he said that we SHOULD (90%) be okay filing a I751 while starting a divorce, but there's always some small chance that it will end up with someone's discretion...in which case they will just need proof.


Thanks for all your help guys.