Sunday, 23 February 2014

There, there baby, it's just textbook stuff

A quick update, post-attorney:

  • He's handled lots of cases like this, and did not show any concerns about the case itself. It is clear that Ben and I had a genuine relationship and have a huge amount of admissible evidence to support that fact.
  • Timing-wise, I need to file my petition to remove conditions on my residency as late as possible (towards the end of my green card's validity) with a cover letter explaining that Ben and I are separated. Later filing should allow me time to file for divorce (see below).. 
  • I will then receive an RFE (Request For Evidence) asking me to provide the USCIS with a decree absolute, proving my divorce, and request a waiver for the joint filing requirement (due to NC law, I cannot file for divorce until Ben and I have been separated for a minimum of one year).
  • That is where the timing issue comes in: I will have a limited time (87 days) to provide the USCIS with the documents requested from the date of the RFE. The date of the RFE is not guaranteed. It could be issued as quickly as six weeks after my petition is received. It could be months longer than that. 
  • If I receive the RFE before I will be able to get the decree absolute, then I'll be in a bit of a sticky spot. It is considered unlikely this will happen, but it is possible.
  • If it does happen that I can't get the decree absolute to the USCIS within the time frame, I will have to write to them and explain why I cannot give them the documentation they need. I'm not sure how this works exactly, but I am given to understand that they will be aware of state-specific marital laws, and that they will simply issue another RFE for the decree absolute when it is available. I have to check on this, however. ***Update 2/25/14*** Two attorneys and the USCIS helpline have confirmed that no extensions are granted for RFE requests for I-751 petitions. If you can't get the documents they ask for in time, the deny your petition and send a Notice to Appear.
  • Either way, when they receive the decree absolute, they will waive the joint filing of my petition and consider me as a divorced individual who came to the USA on a K-1 visa.
  • This will mean that I will likely be called for an interview, during which they will assess whether the marriage was entered into in good faith and not for the purpose of circumventing US immigration laws (if Ben and I were still together, it is unlikely we would have been called for interview but had we been, we would have to prove that it was entered into in good faith and that we had a genuine, ongoing relationship - but clearly they will not be assessing this in my case). If the interviewer accepts that we entered into the marriage in good faith, the conditions will be removed from my residency and I will receive a 10-year, unconditional green card. Should I want to, I can apply for citizenship five years after receiving this, I believe.

So this year is going to be a little stressful. I keep reminding myself that these kind of things happen all the time (marital breakdown is hardly an unusual occurrence) so it won't be out of the ordinary for the USCIS to deal with a case like mine; that the timing while a little uncomfortable is likely to work out; that the USCIS are familiar with varying state laws; that there is no need to worry about things I have no control over; that there is no need to worry because there isn't actually anything wrong in terms of how our marriage happened (other than the resultant pain of having to go through how wonderful our relationship was when we were together - it's like breaking up all over again, and I've had an actual, physical chest pain since the beginning of the week which I am sure is associated with having had to do this). 



There it is, then. Not impossible. Not unusual. And yet entirely horrible in my head.

8 comments:

  1. Major stress. I was convinced that there was a strong chance of rejection after my request for more evidence, but they accepted me and gave me the new green card. It took 5 months from my application to getting the new green card, and that was without the divorce hassles.

    When you first apply, they send you a letter saying that your conditional status has been extended for a year while they process the new application - make back ups of the letter and keep a version of it on you.

    You will be fine, I'm sure. But I understand the stress.

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    1. The RFE is something I am to expect given that I'm explaining Ben and I are separated but I do not yet have legal documentation to show we are no longer married (as legally, we still are due to NC law not allowing us to file for divorce yet).

      I've had an RFE before (when I applied to adjust my status after the wedding), and it was simply that they needed more documentation. I'm glad that's all it was for you, too.

      I know about the letter and its importance for travel (and I read your blog on that, too!), so thanks for that heads-up. I always scan and save all USCIS/immigration-relevant documents and have hard and electronic copies in at least three different locations. I'm a little over-zealous, but it's a very pernickety process, as you know, so I feel it's best to be safe.

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    2. It's like playing cards with an opponent you can't see, who can declare you to be the loser at any point. There are set rules, but it always feels like it's up to them to decide how the rules/guidelines are interpreted! The stress comes from feeling like the process is essentially beyond your control (which, let's face it, it is to a large extent!)

      I do suspect that the rejection rate is very low, however. Your chances of success are extremely high. It's just rotten that the whole divorce and immigration thing involves going over your defunct relationship, but maybe in the long run you'll be able to look back and see it all in a positive light... Fingers crossed!

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    3. Yes, it's massively beyond my control. It'd be stressful enough without the terrible timing re: state vs. federal laws.

      The rejection rate is apparently reasonable, but if you can show you entered into the marriage in good faith and have evidence to back up the fact that the relationship was bona fide during the time it existed (which we did and I do), they are usually understanding, according to the various sources I've spoken with. It's horrible that it is so extra stressful because of NC law (as the process could go so badly wrong due to timing and I feel like I might not even get a regular chance to *be* rejected, if that makes sense), and the most horrible thing is going back through everything in minute detail, feeling the pain over again, and wondering, "How on earth did we get here?".

      But yes. Gimme a year and I'll let you know if any positive lights are shining through yet. I hope by then I'll be feeling a little less horrific.

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  2. My understanding (could easily be wrong) was that in the case of being married you could apply for citizenship after 3 years of being in the US.
    I'm sure in your case it is after 5 years of being in the US (not from when you receive your 10 year green card)

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    1. You're right, Scott. I was very tired writing this. I've just noticed all the typos!

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  3. Just a general thought, not really specific to your circumstances, but something I wondered about. The chances of a successful marriage is normally around 50%. I wonder what the percentage is for international partnerships, and if it is lower? There are after all a lot more pressures on the couple when one has switched country.

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    1. I don't know. Google may have the answer...!

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Thanks for taking the time to write! I try to reply to everyone, and I love to read your comments.