I-485 is scheduled to interview but wife wants Divorce :(

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I married US citizen in July 14 with loving her and good faith but things changed after marriage as we discovered our self that we both have issues even living together for a while before marriage. We filed paperwork for marriage based GC and our conditional GC interview is scheduled but now my US citizen wife want divorce from me. I don't know what to do as far as immigration goes? I still have my F1 status till september and i tried everything i can to save this marriage as i still love her but she mind up her mind :(...

Attorney Answers

5
Giacomo Jacques BeharImmigration AttorneySan Diego, CACA licensed ·
You should still do your darn best to work things out with your wife and salvage this marriage, for if the two of you do not appear together at the upcoming interview, you can pretty much kiss your future in the USA goodbye, unless you meet someone else (also a USC) or there is emotional and or physical "abuse" involved in your current marriage. If there is in fact presence of abuse, you should consult with a reputable immigration attorney to consider filing a "Violence Against Women (Man) Act" ("VAWA") self-petition, which will allow you, if and when it is approved, to apply for the "green card" on your own. It's a complex and slow process, and regrettably men have somewhat lesser chances than women if the follow this pathway.
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Adan Vega ·
If your spouse divorces you , you will not be able to adjust status based in the spousal petition. You and your spouse may want to consider marriage counseling to determine if perhaps both of you are compatible and can continue with your marriage. In the meantime, you need to stay in F-1 status so that you can remain lawfully in the U.S. if the FORM I-485 is withdrawn or denied. Best of luck to you.
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Dyan Williams ·
USCIS has authority to approve a marriage-based green card application (I-130/I-485 one-step application) even if you are not residing together or have marital problems. But you must still be legally married; your wife must not have withdrawn the I-130 or I-864, Affidavit of Support; and you must prove that you entered into marriage in good faith, i.e. with the intent of establishing a life together as husband and wife, and not just for immigration benefits. It is much harder to prove a bona fide marriage if your wife does not attend the interview to provide supporting testimony. Even though your marriage seems to be on the rocks, your wife might still be willing to attend the interview with you. If the relationship is not acrimonious and there's no risk that she will claim the marriage is a sham and withdraw the petition, it is better to have her at the interview. The officer will likely ask about the history and status of your relationship. Be upfront about your marital problems, explain that you want to work things out, but your wife is thinking about getting a divorce. Don't fabricate any documents or provide false testimony to make your marriage look good. Don't unnecessarily volunteer negative information that is not being requested. Present as many documents as you can to prove the marriage was entered into in good faith, e.g joint lease, joint bills, joint accounts, photographs of the two of you together, affidavits from third parties confirming that the two of you entered into a bona fide marriage. A final divorce or legal separation (i.e. written agreement recognized by a court order or court order legally separating the couple) will disqualify you as a spouse for immigration benefits. But an informal separation or marital problems is not a basis for USCIS to automatically deny the petition. These negative factors, however, may be considered in determining whether you entered into marriage in good faith. If there is any chance that you and your wife can resolve your marital problems, but she is unable to attend the scheduled interview, you may request a rescheduling of the interview for good cause. If the request is granted, the Service will issue a new interview notice. Perhaps by then you and your wife would have resolved your marital issues. If neither of you appears for the interview, and no request for rescheduling was filed, the Service will deny the petition/application due to abandonment. I recommend you consult with an experienced immigration attorney to learn about all your options and to help you decide how to move forward.
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Marco Balducci ·
Technically, the issue is whether the marriage was valid AT ITS INCEPTION. In other words, it TECHNICALLY does not have to be viable now; however, as a practical matter it will be a very difficult case to win without your spouse being present. I am sorry to hear about your circumstances, and I wish you all the bes in obtaining a successful resolution.
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