Divorce Or Purposely Withholding I-751

[BeenThereDoneThat]

Haven't Been There Done This before so... just wondering if anyone has any experience in the thoughts that are bouncing around inside my head.

Wife/child have been here for just several months now.

Alternate between wanting her to stay / leave.


A number of things are running through my mind and I just wonder if others have experience in any of these areas. Of course I could ask USCIS/Homeland Security but I see no good point in doing that at this time.

1) Does her status/petition remain unchanged if I file for divorce but we, ultimately, reconcile and remain together?

2) If we divorce, although subject to removal, is it likely anyone would even know before the 2 year conditional period was up?

3) If we divorce and then, for some unknown reason, decide to remarry before the conditional period is up, would she still be able to get her green card or, in that case, would she have to leave and start the whole process over again?

4) If I allow the 2 years to pass and do not file the I-751, does she have any recourse? If I had a change of heart, would we have any recourse or would the whole process have to be followed again?


I know that these two things (divorce, withhold I-751) are drastic measures and not something I would undertake lightly. My thoughts are that probably only option 1 would not cause us to have to go through the whole process again. And option 1 may be enough to make her understand the seriousness of the problem facing us.

You may be thinking that if things are already at this point I should just go ahead and divorce her. Problem is we have a 3 year old child and I still love her (but love and hate seem to be opposite sides of the same coin and that coin hasn't stopped spinning yet). I would just like to understand the consequences of each of those steps (I believe only option 1 will not cause a problem and that the others would all cause the process to have to be re-started if we should ultimately work out our problems).

It is unlikely I would take any action before the end of the year (at which time my child should speak enough English for me to care for him alone, assuming I was awarded custody). Maybe by that time the problem will have been resolved. But sometimes too much information is better than too little.

[bkwld]

What is their current status? How did they entered U.S.?
Is your child from your marriage?
When did you marry?

[BeenThereDoneThat]

Not sure how the info is relevant but....

- entered as CR1 (less than 6 months ago)
- child is with wife but predates marriage
- married 11 months prior to her entry into US

[bkwld]

I hope that you work things out with your wife.
1. Once you divorce, she will be out of status when the divorce is final. She will also be subject to removal. However, she can file for a waiver. “ultimately, reconcile and remain together” does not matter in this scenario.
2. Yes. The USCIS will know eventually, when she files for I-751 on her own, a waiver or a new adjustment of status if you ultimately, reconcile and remain together after divorce. So to avoid a removal status thus becoming under the jurisdiction of an immigration court rather than under USCIS, she should leave the country, or she will need to file for waiver based on good faith marriage.
3. She will need to start all over again. Answer #2 applies here. However, USCIS will not like remarriages (you will need lots of evidence to support that next marriage is a good faith marriage).
4. If not divorced, but did not file I-751 she will be technically out of status. However, you may file I-751 after she technically is out of status. You will most likely need to hire an immigration attorney to help you filing an out of status I-751.
You may not withhold I-751 as it will not apply to her in this scenario.

[BeenThereDoneThat]

Notice in #1 I only said file for divorce but no mention of it ever becoming final. The question is, basically, if I file in order to make her understand the seriousness of the situation but then withdraw the petition will we have a problem. In this case I think not as she would never be out of status.

In #4, where I said withhold the I-751, I simply meant if I allowed the 2 years to lapse and did not submit the I-751. I understand she could file it herself but, honestly, she doesn't know that.


I realize this all sounds bad so soon after her arriving here. What comes next will sound even worse so I'm not really sure why I'm even going to include it. Right now I just really want to hurt her. And the worst thing I could imagine doing is causing her to lose her green card and then getting custody of our child in a divorce knowing that it would kill her because she would likely never see him again. Unfortunately, to hurt her like that would also hurt my child and that's the only reason I haven't already sent her home. That and I really do still love her.