divorce waiver

My I-751 Divorce Waiver Was Denied, Will I Be Deported?

Most of us enter a marriage in hopes that it lasts until the day we die. However, with the divorce rate at 41%, there is a good chance that you may end up single again. Once you have decide to divorce, the next step is to gather evidence for the removal of conditions (I-751). You will need to submit this form with a divorce waiver to the USCIS as soon as you file for divorce.

Ideally, you would want to become familiar with the process of the divorce waiver. But if you have already divorced and moved out of the shared home, gathering evidence won’t be easy. I tend to plan ahead but I understand that sometimes this can be impossible during a divorce. Now if you have received a notice of denial for your case, you do have several options.

Although your appeal may be scrutinized more, you still have a good chance of approval. Just make sure to provide as much evidence of a bona fide marriage as you can. The USCIS will send you the denial letter indicating the reason they denied your petition for removal of conditions. The most common reason for denial is lack of evidence.

Not Enough Evidence of Good Faith Marriage

As I said before, the number one reason for a removal of conditions denial is: lack of evidence! If you submitted your case with very little evidence showing that you entered the marriage in good faith, expect a denial. This is because the USCIS handles so many fraud cases that they assume that a valid marriage should have some evidence.

Examples of evidence of good faith marriage:

  • Joint tax returns – this is one of the strongest forms of evidence.
  • Rent/Mortgage docs – this shows that you both reside in the same home.
  • Bank statements – use statements during the length of your marriage.
  • Credit card statements – you can use joint cards or if either of you is an authorized user.
  • Utilities/other bills – this shows joint household with both names on the bills.

Missing one or two items from the list will not doom your case. But, by having the most important types of evidence you give yourself a better chance. Submitting a case with very little evidence will in fact cause a denial.

You’ll need to carefully assemble and choose documents to support your claim.

Provide copies your tax returns, children’s birth certificates, apartment lease or property ownership deed showing both you and your spouse’s names, copies of any bills related to the ownership of that property (such as utility or electric bills), as well as financial statements that show joint checking or savings accounts.

Take a careful look at these documents before submitting them. Make sure they clearly show both your names (if not on each document, then in combination when reviewing all the documents).

Also make sure the documents cover the right time period, namely the two years (or almost two years) since you were approved for conditional residence. Some couples make the mistake of submitting the same documents they did when first getting their green card, such as wedding pictures. USCIS isn’t interested in these at this point — it wants to know what’s been going on for the last two years and to make sure you haven’t just split up and are faking the marriage.

What To Do If I-751 Is Denied

You may have received a letter from USCIS stating “conditional resident status has been terminated”. USCIS may not believe that you entered the marriage in good faith and are then placed in removal proceedings. If you receive a “notice to appear” letter, this is an indication that you are going to be in removal proceedings. Although you cannot appeal this decision, you will have the opportunity to plead your case in front of an immigration judge.

Your appeal will be reviewed by an Immigration Judge during removal proceedings. In some states there is a huge disconnect between the legal burden required by USCIS and the Immigration Courts. Routinely, denied I-751s are approved after review in court. If your marriage was real, you will win your green card.

At that point, you can once again present all your documents/evidence, plus testify and call witnesses, in order to convince the immigration judge that your marriage was real. If the judge is convinced, he or she has the power to approve you for U.S. lawful permanent residence (a 10 year green card).

If you don’t want to go it alone – consulted with an immigration attorney. The attorney can help you with your next steps – perhaps send USCIS some additional documents now, to help get an approval.

If you end up in Immigration Court, the procedures are complex and difficult for non lawyers to understand, and you will have to face cross-examination by an attorney for the U.S. government. This is why the majority of people in this situation hire an attorney to represent them. It may be worth it to avoid deportation.

Most immigration court proceedings involve, at a minimum, a master calendar (scheduling) hearing and a merits hearing, where you actually present your case. Sometimes the merits hearing lasts for more than one session. So paying a lawyer for a consultation before your denial could turn out to be an excellent investment if it helps you avoid removal proceedings later.

 Options After The Judge Denies Your Appeal

Unfortunately, after an immigration judge denies your motion to appeal – very little can be done. You will immediately be placed in removal proceedings (deportation). It can be heartbreaking to have leave behind the life that you created in the US, but it’s your only “legal” option.

Leaving the US on your own will allow you to file for another visa in the future. As tempting as it may be to illegally stay in the US, you run the risk of a 10 year bar. I know of some immigrants who left the US on their own after years of unlawful presence. Guess what? They received a 10 year bar and cannot get approved for any visa!

Going back home shouldn’t feel like defeat! You followed your heart and trusted someone you loved. Relationships are not always guaranteed to work but how you handle the breakup is what’s important. Move on and pick up the pieces of the life you once had, you never know what your destiny will be.

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