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Old Nov 3rd 2010, 12:29 pm   #1
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Default Filing I-751 and separated from spouse. Please help

Hi guys,

Im a newbie here but Ive been a long standing member at visajourney.
I am a Brit/Kiwi living in the US married to a US citizen. I came to the US on K1 visa. I have a 2year green card now and I am about to apply for my ten year card and removal of conditions.

Unfortunately my wife and I have separated which has been devastating.
I am going back to New Zealand for a while to recuperate why my application is processed.

Does anyone know if I can re enter the US on a visa waiver to do my interview/ biometrics etc if my 2 year card has expired ( while waiting on the ten year one) ?

thankyou in advance
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Old Nov 3rd 2010, 12:42 pm   #2
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Default Re: Filing I-751 and separated from spouse. Please help

Quote:
Originally Posted by MegGrae View Post
Does anyone know if I can re enter the US on a visa waiver to do my interview/ biometrics etc if my 2 year card has expired ( while waiting on the ten year one) ?
You need to take care of filing the I-751 and getting biometrics done and receive the 1-year extension letter from USCIS *before* leaving the USA right now. If you leave the USA and your 2-year card expires, without you filing the I-751, you will have a lot of problems in fixing that situation.

You need that 1-year extension letter from USCIS in order to return to the USA as a PR. Personally I would not enter the USA on the VWP while the I-751 is processing.

You can't file the I-751 with waiver anyway, until your divorce is final. Well, you can....but you'll get an RFE for the final divorce decree. Have you filed the I-751 yet? When you do, make sure you include evidence that a divorce is in process.

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Old Nov 3rd 2010, 1:01 pm   #3
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Default Re: Filing I-751 and separated from spouse. Please help

Ok. I am in the process of submitting my I-751 ( gathering evidence etcc)
Do you know how long it takes to get a one year extension letter from USCIS?
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Old Nov 3rd 2010, 1:04 pm   #4
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Default Re: Filing I-751 and separated from spouse. Please help

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Originally Posted by MegGrae View Post
Ok. I am in the process of submitting my I-751 ( gathering evidence etcc)
Do you know how long it takes to get a one year extension letter from USCIS?
Most likely within a month of filing the I-751.

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Old Nov 3rd 2010, 1:08 pm   #5
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Default Re: Filing I-751 and separated from spouse. Please help

Also, don't forget, if you are the one who moved, you need to file AR-11 online to notify USCIS of your new address. You should have done this within 10 days of moving, but if you didn't, do it now.

Your wife, if she's the one who moved, is supposed to file an I-865 sponsor's change of address, but it's not your problem if she doesn't.

When submitting your I-751 (I assume it's not a joint one), be sure to include proof that the divorce paperwork has been filed, and is pending the final divorce decree. If you haven't yet filed for divorce, keep in mind that you can only remove conditions with waiver once a divorce is final. In the meantime, expect an RFE for the divorce paperwork.

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Old Nov 3rd 2010, 1:10 pm   #6
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Default Re: Filing I-751 and separated from spouse. Please help

Quote:
Originally Posted by Noorah101 View Post
Most likely within a month of filing the I-751.

Rene
Ok, thanks. In regards to the 1 yr extension letter, Is it a matter of requesting this on a separate piece of paper while filing my I-751?
My address will be one in New Zealand for the AR-11, is this a problem?

Last edited by MegGrae; Nov 3rd 2010 at 1:12 pm.
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Old Nov 3rd 2010, 1:21 pm   #7
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Default Re: Filing I-751 and separated from spouse. Please help

Quote:
Originally Posted by MegGrae View Post
Ok, thanks. In regards to the 1 yr extension letter, Is it a matter of requesting this on a separate piece of paper while filing my I-751?
No, you don't need to special request it. USCIS sends out the 1-year extension letter automatically after they receive your I-751. Make sure you get the biometrics done as well, and make sure you have a stable US mailing address. USCIS will not send these things overseas.

Quote:
My address will be one in New Zealand for the AR-11, is this a problem?
YES, I'd say it's a problem. Use a stable US mailing address, even if it's a friend. If you do a change of address to an overseas one, it makes it look like you've moved outside the USA and it could look as though you've abandoned your PR status. Especially if you are considering entering on the VWP at some point later on. It's best if you keep a US address. USCIS will not send anything overseas.

When filing the I-751, make sure you use your NEW stable mailing address on the form! You want USCIS to be able to send you the receipt, biometrics, and extension letter very easily, and you need a US address for that.

Especially if you are filing an I-751 with waiver, but are not including a final divorce decree....USCIS WILL send you an RFE for this, and you have limited time to respond.

How long were you thinking of staying in NZ? Is it not possible to wait and go to NZ once the conditions are removed and you have your 10 year card in hand? That would make it SO much easier from an immigration standpoint. Maybe you can just try to recoup here in the USA until it's safer for you to travel outside the USA...you've chosen a really bad time to try and be outside the USA for any length of time.

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Last edited by Noorah101; Nov 3rd 2010 at 1:24 pm.
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Old Nov 3rd 2010, 1:25 pm   #8
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Default Re: Filing I-751 and separated from spouse. Please help

Quote:
Originally Posted by Noorah101 View Post
No, you don't need to special request it. USCIS sends out the 1-year extension letter automatically after they receive your I-751. Make sure you get the biometrics done as well, and make sure you have a stable US mailing address. USCIS will not send these things overseas.


YES, I'd say it's a problem. Use a stable US mailing address, even if it's a friend. If you do a change of address to an overseas one, it makes it look like you've moved outside the USA and it could look as though you've abandoned your PR status. Especially if you are considering entering on the VWP at some point later on. It's best if you keep a US address. USCIS will not send anything overseas.

When filing the I-751, make sure you use your NEW stable mailing address on the form! You want USCIS to be able to send you the receipt, biometrics, and extension letter very easily, and you need a US address for that.

Rene
Thanks Rene. I think I will be able to ake care of having a stable address here.
I would like to hang on until I get that NOA from USCIS, but I'm afraid my wife wont allow me too. Maybe I can stay with a friend, I hope.

Thankyou very much for your advice

Last edited by MegGrae; Nov 3rd 2010 at 1:36 pm.
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Old Nov 3rd 2010, 2:12 pm   #9
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Default Re: Filing I-751 and separated from spouse. Please help

Quote:
Originally Posted by MegGrae View Post
Ok, thanks. In regards to the 1 yr extension letter, Is it a matter of requesting this on a separate piece of paper while filing my I-751?
My address will be one in New Zealand for the AR-11, is this a problem?

Yes, it will be a problem. Leave a US address for mailing purposes, even if it is a PO Box, do not leave the US without having done your biometrics and have the 1 year extension letter in your hands, and DO NOT be outside of the US for more than 6 months.
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Old Nov 3rd 2010, 2:23 pm   #10
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Default Re: Filing I-751 and separated from spouse. Please help

Quote:
Originally Posted by Rete View Post
Yes, it will be a problem. Leave a US address for mailing purposes, even if it is a PO Box, do not leave the US without having done your biometrics and have the 1 year extension letter in your hands, and DO NOT be outside of the US for more than 6 months.
I agree with Rete.

My main concern for the OP is that if he's filing an I-751 with waiver, he WILL receive an RFE. The RFE has a deadline for response, and he will need to stay on top of that.

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Old Nov 3rd 2010, 2:27 pm   #11
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Default Re: Filing I-751 and separated from spouse. Please help

Quote:
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I would like to hang on until I get that NOA from USCIS, but I'm afraid my wife wont allow me too. Maybe I can stay with a friend, I hope.
I'm not sure what you mean here...your wife won't allow you to what? She cannot prevent you from staying in the USA, and it's illegal for her to withhold US Mail which is addressed to you. You've said your wife and you are separated, which means you already are not living together. Where have you been living recently?

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Old Nov 3rd 2010, 2:33 pm   #12
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Default Re: Filing I-751 and separated from spouse. Please help

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Originally Posted by Noorah101 View Post
I'm not sure what you mean here...your wife won't allow you to what? She cannot prevent you from staying in the USA, and it's illegal for her to withhold US Mail which is addressed to you. You've said your wife and you are separated, which means you already are not living together. Where have you been living recently?

Rene
I am still living with my wife. We have only recently decided to separate even though we still live together.
When you talk about the RFE, do you mean the divorce papers?
Will I need evidence of a finalized divorce within that deadline? I dont know how long the deadline is.
Yes, I will get my biometrics done as soon as possible.

Last edited by MegGrae; Nov 3rd 2010 at 2:41 pm.
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Old Nov 3rd 2010, 2:42 pm   #13
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Default Re: Filing I-751 and separated from spouse. Please help

Quote:
Originally Posted by MegGrae View Post
I am still living with my wife. We have only recently decided to separate even though we still live together.
I see, thanks for clearing that up. So am I correct in assuming you are planning to file the I-751 with waiver of joint filing? You guys will be divorcing, you're not going to work on the marriage and go to counseling or anything?

Quote:
When you talk about the RFE, do you mean the divorce papers?
Yes. When you file the I-751 (I assume it will not be joint filing), you will need to explain why you are requesting the waiver of joint filing. Write an explanation of why (you guys are separated and arranging a divorce). The I-751 cannot actually be processed until USCIS receives a final divorce decree from you. So, after USCIS receives your I-751, they will issue an RFE (request for further evidence), which will be for your divorce decree.

Quote:
Will I need evidence of a finalized divorce within that deadline?
Sometimes it won't be possible to get the final divorce decree within that time frame, it depends on the divorce laws in your state. But the one thing you cannot do is ignore the RFE. When you receive the RFE, send back whatever you have at the time...the initial divorce paperwork, showing how long it might take to get finalized, etc.

Quote:
I dont know how long the deadline is
If I recall correctly, it's usually something like 89 days to respond to the RFE, but it could be less. The actual RFE you receive in the mail will give you the deadline date.

This is why I highly suggest NOT leaving the USA while this is all processing. You will need to be involved in getting the divorce going, filing the I-751, waiting for correspondence from USCIS, biometrics, RFE, divorce proceedings, etc. Probably not the best time to be leaving the USA, in my opinion.

By the way, I should say I'm very sorry about the separation. I'm sure it's painful for you.

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Old Nov 3rd 2010, 2:43 pm   #14
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Default Re: Filing I-751 and separated from spouse. Please help

Quote:
Originally Posted by MegGrae View Post
Yes, I will get my biometrics done as soon as possible.
Well, you can't get them done until USCIS sends you the biometrics appointment letter anyway....but once you have the appointment letter, you can go earlier to get them done, you don't have to wait for the actual appointment date. But you do need the original USCIS appointment letter, which comes in the mail a few weeks after filing I-751.

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Old Nov 3rd 2010, 3:18 pm   #15
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Default Re: Filing I-751 and separated from spouse. Please help

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Originally Posted by Noorah101 View Post
I see, thanks for clearing that up. So am I correct in assuming you are planning to file the I-751 with waiver of joint filing? You guys will be divorcing, you're not going to work on the marriage and go to counseling or anything?


Yes. When you file the I-751 (I assume it will not be joint filing), you will need to explain why you are requesting the waiver of joint filing. Write an explanation of why (you guys are separated and arranging a divorce). The I-751 cannot actually be processed until USCIS receives a final divorce decree from you. So, after USCIS receives your I-751, they will issue an RFE (request for further evidence), which will be for your divorce decree.


Sometimes it won't be possible to get the final divorce decree within that time frame, it depends on the divorce laws in your state. But the one thing you cannot do is ignore the RFE. When you receive the RFE, send back whatever you have at the time...the initial divorce paperwork, showing how long it might take to get finalized, etc.


If I recall correctly, it's usually something like 89 days to respond to the RFE, but it could be less. The actual RFE you receive in the mail will give you the deadline date.

This is why I highly suggest NOT leaving the USA while this is all processing. You will need to be involved in getting the divorce going, filing the I-751, waiting for correspondence from USCIS, biometrics, RFE, divorce proceedings, etc. Probably not the best time to be leaving the USA, in my opinion.

By the way, I should say I'm very sorry about the separation. I'm sure it's painful for you.

Rene
We have not looked at marriage or counseling. If USCIS can only start to process my I-751 once they have the final divorce decree then it could take months. I live in Washington DC, Im not sure how long it takes to get a fianal divorce decree but its probably several months. If the deadline is 89 days then all I can do is just hope I can get the decree in that time.

Actually, I just looked into divorce in Washington D.C and it appears that divorce proceedings take months. http://www.divorcelawinfo.com/dc/flc.htm So based on that I guess I'm screwed.


Yes, I am devastated. I had hoped I could continue on with my life here in the U.S.

Last edited by MegGrae; Nov 3rd 2010 at 3:34 pm.
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