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ARQU, JOST, HALALI, PASHA PATEL -VERY BAD NEWS FOR JOINT I-751 AND DIVORCE PRIOR TO ADJUDICATION

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  • ARQU, JOST, HALALI, PASHA PATEL -VERY BAD NEWS FOR JOINT I-751 AND DIVORCE PRIOR TO ADJUDICATION

    I just find this case:

    http://www.usdoj.gov/eoir/vll/intdec/vol20/3240.pdf

    Were although BCIS has not published their position about what happens if divorce occurs prior to Adjudication/Decision of Joint I-751, "an alien becomes statutorily INELIGIBLE for approval of a joint petition under section 216(c)(1) of the Immigration and Nationality Aact, 8 U.S.C. Section 1186a(c)(1)(1988), where the marriage has been terminated prior to adjudication of the petition by the immigration judge."

    The only person I know that marriage has already been terminated after filing of JOINT I-751 is ARQU to whom I encouraged to see a lawyer immediately to file a WAIVER...

    This case just ruin my day....

  • #2
    I just find this case:

    http://www.usdoj.gov/eoir/vll/intdec/vol20/3240.pdf

    Were although BCIS has not published their position about what happens if divorce occurs prior to Adjudication/Decision of Joint I-751, "an alien becomes statutorily INELIGIBLE for approval of a joint petition under section 216(c)(1) of the Immigration and Nationality Aact, 8 U.S.C. Section 1186a(c)(1)(1988), where the marriage has been terminated prior to adjudication of the petition by the immigration judge."

    The only person I know that marriage has already been terminated after filing of JOINT I-751 is ARQU to whom I encouraged to see a lawyer immediately to file a WAIVER...

    This case just ruin my day....

    Comment


    • #3
      Finally we are getting somewhere - some actual case law!

      I have started to gather as many decisions as I can before I go see the lawyers again... Makes you wonder how good a lawyer is if they are not familiar with these decisions... It would seem to be a good indicator of the quality of the lawyer... The ones I talked to so far just kind of shrug their shoulders and say they are not sure how to proceed... It would appear to be very clear that there is a lot of precedent in these matters - now I just need to slug through some of it and find the best fits...

      By the way, I came across a very useful link. It is an index of Precedent Decisions...

      http:http://www.usdoj.gov/eoir/vll/intdec...s-thru3494.pdf

      Where there is one index - there must be others... This stuff ties in with the naming convention in the URL you provided - just put in the appropriate decision instead of 3240...

      ARQU

      Comment


      • #4
        Found another...

        http://www.usdoj.gov/eoir/efoia/bia/biaindx.htm

        Comment


        • #5
          So how are you going to proceed afte4r reading that case, the 3240 where it states that divorce before adjudication of JOINT I-751 is equeal to joint I-751 withdrawal?

          I stopped my divorce proceedings for now... but still in 7 months aproximately she could ammend her complaint for a no-fault and I won't be able to stop it, maybe delay a little more..

          Comment


          • #6
            I am no expert, but interpretting that statement, in my opinion, means that the joint petition would be revoked, and then the petitioner, alien, would have to file alone, and comply with the requirements that BCIS underlines for such a case, i.e.:

            Alien spouse may apply to remove conditions of PR under the following cases
            a. spouse has died
            b. alien suffered abuse
            c. alien would suffer hardship if removed and sent back
            d. alien was married, but marriage ended due to divorce or annulment, BUT marriage was bona fide.

            In the last situation listed above, I would suspect that the alien must be able to support or prove that the marriage was bona fide, without the support or testimony of the divorced spouse. I don't know what information would be required to support this, other than documents showing the marriage happened, and that the two lived together and had joint assets during the two-year period. Also, what may be important in this situation is to consider that when the I-751 is filed jointly, BICS requires affidavits from two or more people attesting that the couple were indeed married for the right reasons, maybe more affidavits if the alien is filing alone, might be more compelling to BCIS.

            Am I interpetting this correctly, anyone?

            Comment


            • #7
              You are correct swissnut the only thing I am afraid of is if the JOINT I-751 is revoked then, the conditional status is terminated and the alien will face deportation proceedings, and if the alien is not allowed to work while straights things out and files a new I-751 can be very stressful.

              Comment


              • #8
                I have spent some time on this over the last few days. This morning I have contacted 5 lawyers and talked to them on the phone. Now that I have more case law to help understand the issues ahead of me, I am starting to get consitant answers from the lawyers. Actually ALL 5 of them gave me the same 'off the record' advice.

                In my particular case, they are advising me to DO NOTHING. If I bring my situation to the attention of the ajudicators, they will refuse to process my application based on the fact that the marriage was annuled - even if it was not annuled based on fraud. They will simply not hear the case. (No appeal, no arguments, they just wont process the application at all.)

                Therefore, I am much better off going for the 90% chance that my GC will be approved without a followup interview. In the event that I am called into the district office for that interview, I will then need to look at other options at that time, including voluntary departure and then reentry under a different status (I am eligble for a couple of non-immigrant visas, a dep't of labour visa (TN), and potentially labour certification for a GC).

                This advice will not hold true with people dealing with divorces - they MAY be better of refiling their application under a waiver of some kind. I am still digging for more examples of case law for that circumstance.

                But the advice being given to me today is clear - I am better of with a 90% chance of getting a 10yr GC than adjusting my application. Of course, this will 'complicate' any N-400 application or GC renewal in 10 yrs but that is a LONG way away...

                I have also been advised that in my case, if a econd marriage occured, it would not be an issue as long as the first application was not ruled fraudulant.

                ARQU

                Comment


                • #9
                  Patience always wins. I would also advice that you wait.

                  hey about those who go through divorce, should you tell them if you separate?

                  Also, anyone knows when they will start processing I-751s? Looks like they are just piling and piling up and no one is saying anything.

                  Comment


                  • #10
                    Arqu:

                    I can see in your case that wiating and hoping for 90% is the best route, since you are the alien wanting the GC. In my situation, howver, since I am in the exact opposite position, being the USC whose husband has taken off with his mistress, and appears unwilling to work on our marriage - and also, very importantly - appears not to have married in the first place for a BONA FIDE reason, then is it not true that I should advise BCIS of our separation and impending divorce, so that my husband's jointly filed petition would be revoked? Then he would have to proceed with the GC alone, and I would be off the hook?

                    Comment


                    • #11
                      Swissnut please leave him alone to sort out his mess. Dont worry about him.

                      Comment


                      • #12
                        Hi AGUILA,ARQU, JOST, HALALI,
                        I feel so sad about it. I am still not in that messy situation but just trying to survive for couple of more months.... Its not fun...trust me...cuz every single day is danger and after knowing all this legal matters..... I don't know what to state about...I hope there might come some other law regarding I 751 in Non USC spouse's favor... I can be in your situation anytime...you never know the future....good luck guys .... Keep up dating this website if you find something...I will do the same.....Take care

                        Comment


                        • #13
                          Am really surpised at the silence about the slow rate of approving I-751 applications.

                          Has anyone heard of when they will resume processing them?

                          Comment


                          • #14
                            I-751 ARE NOT MOVINGT AT ALL JOSTO.

                            Arqu, aren't you qualified for a WAIVER , even though your marriage was annuled? because it says "ended through divorce or annulment" for the MARRIAGE IN GOOD FAITH WAIVER.

                            Although the N400 has to be filed in the future it would be nice if you take precautions before that, and if you get your GC and they don't know about your annulment they are going to accused you of immigration fraud, for concealing a material fact to the approval of your JOINT I-751.

                            If you have a follow up inteview, would you show up by yourself to at least give yourself a chance?

                            Comment


                            • #15
                              Josta:

                              I do not understand your comment "Leave him alone to sort out the mess". What are you syggesting ? That I not contact BCIS? That I do not rescind the joint appliation?
                              Like I have already stated before on other threads...I am the sponsor and the de-frauded USC wife. Surely I have the right to do what is right And surely I have the right to make certain I am not implicated in a fraudulent marriage scheme! Surely I have the right to make certain that I am not held responsible for my husband's financial situation for 10 years!

                              What are you suggeting...that I remain victimized by my husband and his Mistress?

                              Comment

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