February 22, 2010: I-751 Joint Filed, Marriage Fell Apart, What Now?
I-751 Jointly Filed, Marriage Fell Apart, What Now?
I just filed my I-751. Everything was signed and mailed. I got the receipt and went for my biometrics. My marriage, however, just fell apart over a few weeks. What happens to my status?
It appears that you properly filed the I-751 as a joint petition because you were married to your spouse at the time it was filed.
Under the current immigration laws, there is no law that allows “separated” persons to file the I-751 petition on their own. This is also known as a “waiver” to the joint filing requirement. However, according to a memorandum that was published on April 3, 2009 by Donald Neufeld, the Acting Associate Director for the United States Department of Homeland Security (USDHS), United States Citizenship and Immigration Services (USCIS), if a Service Center Immigration Service Officer (ISO) finds out that the married couple are legally separated or divorce proceedings are pending, the ISO is supposed to issue a Request for Evidence (RFE) to allow the person 87 days to submit proof of the legal termination of the marriage, such as a divorce decree.
Once finalized, the individual should submit a copy of the divorce decree and a request to have the joint petition be treated as a waiver petition. The ISO is supposed to amend the I-751 joint petition to reflect that it is now an I-751 waiver petition and make a decision based on the merits of the case.
The ISO may approve the case without needing further evidence of the marriage, or it may schedule the person for an in-person interview at a local Field Office. Before this memorandum was issued, the I-751 joint petition was automatically cancelled, and the individual would have to re-file a brand new I-751 petition as a waiver once the divorce became final. It appears that the memorandum gives persons who are separated from their spouse an alternative to having to re-file the I-751 as a waiver once the divorce is finalized.
It may be wise for you to consult with an experienced immigration attorney to discuss all of your options and the possible consequences.
Michael Shane and Evan Shane, Immigration Attorneys