Separated but not Divorced. Navigating the Jointly filed I-751 Petition to Remove Conditions on Residence – PART II

Posted on Oct 19, 2018

During the course of the more than 25 years that I have been an Immigration Lawyer, I have encountered my fair share of cases and situations where the primary driving force behind the problem I am attempting to solve is due to a change in circumstances that a family is experiencing. This can happen in many different ways, such as, for instance, where a family is forced to separate and live in different jurisdictions due to economic reasons; or where a married couple divorces; where an immigrant gets married; or, sadly, when a sponsor or principal dies. It can also happen in the other direction, such as when an immigrant changes their status (upgrades) and becomes a permanent resident or naturalizes (which can have an effect on a dependent beneficiary and can sometimes be negative). I wrote about this extensively in my Nunc Pro Tunc Asylum procedures blog post.

But by far, the situation that I see the most and the one that I have the most experience with is where a married couple separates in the middle of an immigrant petition process and either takes a break from the marriage or starts contemplating divorce. While this sometimes happens during the pendency of the I-130 Petition for Alien Relative, the context in which I see it the most is where the parties already have an approved I-130 and are either contemplating filing the I-751 Petition to Remove Conditions on Residence or where they have already jointly filed the I-751 and have subsequently separated. I also wrote about this extensively in a previous blog post entitled “Separated but not Divorced. Navigating the Jointly filed I-751 Petition to Remove Conditions on Residence” which seems to have attracted a lot of attention. Due to the number of inquiries and clients that I have received since I wrote that blog post, I felt it necessary to write more about the subject matter and provide some additional insights that I have gained in working with clients in this situation since that time.

What is the legal definition of “separated” and how do I know if my situation qualifies?

Some of my clients ask me what it means to be “separated” under the law and whether their situation qualifies for the type of favorable treatment that I described in my last blog post. This is a good question … and the answer is simple and straight-forward.

While U.S. immigration law is federal in its application, the legal relationship of a marriage (and all things legal that arise from it) are questions of state law and will be different and specific to each State. While most U.S. states actually recognize and allow for a legal status of “separation”, since I am only licensed in the State of Florida, I can only tell you that Florida does NOT. Thus, in answer to the question, while USCIS may consider the legal status of “separated” under the law of States that recognize separation, USCIS does NOT require parties to seek a court-approved “separation” at any point in the I-751 proceedings and thus the State law differences are irrelevant. Answered simply … “separation” in the context of my blog simply means that the parties to a marriage are no longer living together and are either taking a break from their marriage, contemplating divorce, or have decided to get divorced but have not yet filed for a divorce in the State Court.

If my spouse and I separate and I move to a new residence, should I notify USCIS?

Under applicable regulations, non-citizens are required to notify USCIS of any change of address within ten (10) days of moving or relocating. This is done by filing an AR-11 Change of Address form, which can be paper filed or electronically filed online with USCIS. While filing the AR-11 form may actually delay or change the processing of your I-751, this is not something that you have control over, as you are required to comply with U.S. Immigration laws.

Moreover, and also very importantly, I advise my clients to file AR-11’s so that there is never a suspicion or insinuation by USCIS that a material fact (ie. the separation) was withheld and concealed by the applicant. This fact can arise later, such as if/when USCIS sends out a Request for Evidence (RFE) during the processing of the I-751 asking for updated and additional evidence. It can also arise years later when the applicant green card holder applies for Naturalization and the immigration officer connects the addresses with the dates and concludes that the parties were separated before the I-751 was approved, but that USCIS was never notified of the separation. These are problems that can be easily addressed by the filing of an AR-11 change of address form.

I have received a Request for Evidence (RFE), but my spouse and I are separated. What should I do now?

My number one rule (and requirement) with all of my cases is that my clients tell the truth and be up-front and honest with USCIS about the fact of the separation. If my clients receive an RFE, I advise them that it’s not OK to simply provide USCIS with old records (ie. utility bills, bank statements, etc.) from when you were still living together in order be consistent with the information in the I-751. Nor is it OK to provide current records (which have not been updated yet … such as, for instance, where addresses have not been changed with banks or utility companies) that have the appearance that the parties are still living together. This is and can be construed as immigration fraud and could be used as a basis to deny your case, revoke your green card (if later discovered), thus ultimately leading to deportation.

Again, as I have repeatedly stressed in this blog series, separation, by itself, is not a ground to deny an I-751 petition if the evidence otherwise proves that the marriage was entered into in good faith. So don’t create a problem (ie. by not disclosing the fact of the separation) where there is no problem. I have navigated many clients through this difficult situation and have a very specific strategy and approach in dealing with the response to the RFE. If you find yourself in this situation and need assistance, please contact my office to schedule a consultation.

Will I be scheduled for an interview on my I-751? What if my sponsor (the US citizen spouse) will not attend the interview with me?

Most of the I-751 petitions that I have filed for my clients have been approved without an interview. But understand that this is, in part, because of the way that I document my client’s I-751 petitions and how I set up the legal arguments and supporting evidence. My strategy is to give USICS everything that they need to approve the petition in the first instance so that there are no questions or concerns about the validity or current status of the marriage.

In my experience, I-751’s interviews are scheduled either where:

(1) the reviewing officer suspects fraud or some impropriety with the filing and feels that an in-person interview would be helpful in clearing up any concerns;

(2) despite Requests for Evidence, the petitioners have still not met their burden of proving entitlement to the benefit of having the conditions removed and the adjudicating officer needs more information;

(3) by random audit. USCIS randomly audits petitions and selects them for an interview without regard for the merits, or lack thereof, of the petition.

If your I-751 is scheduled for an interview and your spouse does not attend, this could be an automatic ground for denial of the petition.

Recall that in my previous blog post on I-751’s, I listed the requirements set forth in the 2009 Neufeld Memo, one of which was that “the CPR and petitioning spouse appear for Interview” (IF an interview is scheduled). If your spouse has changed his/her mind and decides not to attend the interview, you may need change your strategy very quickly and consider filing for divorce, as your ability to convert your joint I-751 petition into a self-petition (waiver) based upon a “Good Faith Marriage” will require that your divorce is finalized by a State Court. This is a complicated and tricky process and should not be navigated alone or without the advice and assistance of an Immigration Lawyer that understands the timing and dynamics of the situation in which you are involved. If this describes you, please call my office to schedule a consultation to discuss your options.

I read online that if I am separated, that the only way my joint I-751 will be approved is if I get divorced. Should I just file for divorce and then try to get my petition approved based upon a Good Faith Marriage Waiver?

I have been asked this question or some variation of this question many times. Very often, prospective clients tell me … “I spoke to an Immigration Lawyer today who told me to file for divorce because we are separated.” I have even worked with clients who acted upon this advice and then filed for divorce, even though their US citizen sponsor/spouse was still in support of the joint petition and was willing to go to the interview. Again, this is a very tricky situation to navigate and should only be done with the advice and assistance of an Immigration Lawyer who has experience in this particular area of U.S. Immigration law.

Like many things in law (and in life), each case is unique and the advice and direction that I chart for my clients will always depend upon the specific facts their particular circumstances. Ultimately, after going through an exhaustive intake and analysis with my client, I explain to the client that he/she is in the best position to know where the relationship is probably heading and whether the separation is temporary, whether marriage is irretrievably broken, or whether their spouse will, in fact, continue to cooperation all the way through a potential interview on the I-751 petition. If the conclusion is that the marital breakdown is terminal AND that the sponsoring spouse is no longer committed to the joint petition OR cannot be relied upon to attend the interview and continue to be supportive, my recommendation to the client is usually to switch tracks and go to plan B which involves getting divorced. Under these circumstances, I am working closely with my client to monitor the situation and to time the filings and disclosures as the case warrants.

Why will USCIS approve our joint petition even though we are separated? Will they think that we are just gaming the system and staying married just so that I can get my green card?

USCIS is REQUIRED to give full and fair consideration to the bona fides of the marriage and look into whether it was entered into in good faith (and not just to get the green card). On top of this, the case law that has developed in this area has been consistent and clear over the years that separation is just one factor and, by itself, cannot form the basis of a denial. This means that if the officer wants to deny the petition, he/she must base the denial on other findings and facts.

Also, I think that this policy results in a tension that exists in the law where USCIS, in its implementation of the law and regulations, does not want to be seen as encouraging or pressuring people to get divorced. In other words, the good faith marriage waiver (I-751 self-petition) already requires that the parties be divorced. In my experience, this regulation tends to move people to file for divorce a little sooner than they ordinarily would, as they understand that their ability to remain in the U.S. (and hold on to their green card) suddenly requires them to get divorced. That said, I have also seen my fair share of cases and situations (both in and out of the Immigration context) where parties separate and then reconcile and get back together again. Thus, where parties have only separated (and neither has filed for divorce) and they are both still willing to move forward with the joint I-751 petition, USCIS will completely recognize the possibility of reconciliation and will not take steps to force the parties to get divorced. In my mind, its simply against public policy.

Thus, there is absolutely nothing wrong with going forward with a joint petition even though you are separated. It’s your right under the law and it happens all the time. Again, having had the privilege of working on many joint I-751 petitions where the parties were separated, my recommendation is that you do so only while under the guidance and direction of an experienced immigration lawyer and not try to do this on your own.

If you need legal assistance with the filing of your I-751 Petition to Remove Conditions on Residence or have any have questions about the timing of filing your joint I-751 petition, contact South Florida Immigration Lawyer Sean D. Hummel and schedule a consultation: (954) 385-3111.

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