1. Waiver Requests Filed Prior to Marriage Termination
The recent memo, issued by Donald Neufeld, Acting Associate Director, and dated April 3, 2009 (released in July 2009), addresses the lack of a category for those who married in good faith, but are separated or in the process of divorce. The memo instructs USCIS officers who review these cases to issue requests for evidence (RFEs) if they encounter I-751s requesting waiver of the joint requirement, if the couple was still legally married at the time of the filing. The RFE has an 87-day period for response and requests proof of termination of the marriage.
If the foreign national can respond to the RFE within the allowed timeframe, providing proof of the termination of the marriage in the form of a divorce decree or annulment, then the case can be approved. This is a significant variation from the general immigration requirements that an individual must be eligible for the benefit requested at the time of filing. This is one situation in which a slow processing time may work to the advantage of the foreign national, as it may provide enough time to finalize a divorce.
2. Joint Filings with Troubled Marriages :
Another variation with I-751 filings involves couples who file jointly, but are legally separated or in the process of divorce. The USCIS reviews these cases carefully, as they view this as a potential indication that the marriage may not have been bona fide at its inception. In these cases, the USCIS will issue RFEs with 87-days for response.
This RFE will request a copy of documentation proving termination of the marriage, and a request to have the joint petition treated as a request for a waiver of the joint filing. This allows the foreign national to obtain the waiver, if the marriage has been terminated, without having to re-file the I-751. Previously, a new filing would have been required.
If there is no response to the RFE, or the response does not establish that the marriage is terminated, the USCIS will adjudicate it as a joint petition. The result will depend on the evidence of bona fide marriage. The case may be forwarded to a USCIS field office for an in-person interview to determine if it was bona fide at the time when the parties entered into the marriage.
