My girlfriend came to the United States in the beginning of 2005, she married her petitioner in the required 90 days as a k1 visa holder, she recently got a divorce from this man and we want to get married.

What do we have to do to make this legal? I would like to become her petitioner, does she have to leave the US?, and if so, how long must she wait before coming back to the US and what kind of visa do I petition her for?

And also does anyone know how long she can stay in the US after her divorce? She does not have her conditional GC yet

So she married but never adjusted status?

Well as soon as she was no longer filing for adjustment she was out of status. Maybe before, I seem to remember reading that in these circumstances she would effectively be out of status from the end of the 90 days. This would be important as far as the waiver is concerned.

She would need to return to China and you would need to file for either a finacee or spousal visa. And then a waiver for the overstay.

Yes she did apply for I-485 but was still pending for name check till divorce

The situation is that a k-1 visa holder can only adjust status with the original petitioner and any overstay would be forgiven when they did finally apply. I do not see how she can stay for any length of time after her divorce without causing difficulty for her to receive another type of visa in the future. You have a complicated situation that may not be able to be answered here and you should probably seek competant legal representation ASAP.

The important issue is that she did not adjust.

So for her to immigrate to the US she would need to leave and be sponsored by you. Have a look at the I-601 Forum for waiver information and www.immigrate2us.net.

I dont realy agree that she would have to leave and infact i would recomend her not leaving at this point as it will probbaly cause a delay in you to being together. I would however get a lawuer as soon as possiable they are more experacned in the ways around things like this i know someone that did something like this and the only way she didnt have to leave was she had a lawuer. Its not something that you would want to take on yourself hope this helps

DON NOT ALLOW HER TO LEAVE THE USA UNTIL SHE HAS SPOKEN TO A IMMIGRATION LAWYER..... If her AOS was pending it may well be that she has abandoned her AOS... but she did legally enter the US... an immigration lawyer will be able to tell you whether it is possible for you to get married and file an I-130 and AOS from within the US.... if she has been here since 2005 then she is heading for a 10 year ban if she leaves the country... yes it can be overcome with a wavier but check with a lawyer if she has to leave at all....

Good Luck

Kez

Devil's advocate here, but did you know this woman while she was still married and are you one of the reasons she got the divorce? I mean, shouldn't you be a bit wary over the entire situation? Why didn't they file AOS in over 2 years if they dd the K1 and got married within 90 days? I'd probably consult an immigration attorney on this one. If she had AOS and then divorced it would be simple, but now it looks like she entered on a different K1, never got AOS, and is already trying to marry someone else, which raises red flags.

The OP did not say it took 2 years to file the AOS package. It was written that the divorce occurred while the adjustment was pending.

Agreed on the advice to consult competent immigration lawyer before doing anything.

Just curious what awakened this thread from January???

The OP's signature indicates filing I-751 which I suppose an attorney might have figured out how to do, but it is my understanding only the original petitioner can file for AOS, and the gal allegedly here but divorced has not been here for three years, nor is she still married to the original petitioner... So how are they applying to remove conditions when the other part of the story is she never received the green card originally...

The OP's timeline fails to shed light on the matter as well, with nothing entered and a reference to the wrong embassy for someone from China, which the OP states is where his girlfriend is from... So many questions...

One explanation could be that the OP in this thread is speaking of "his girlfriend"...and in prior posts he refers to "a friend". They are not necessarily the same person.

I started the thread at the beginning of this year for a guy whom wanted to marry my friend that I met from another visa forum. She has already divorced now and will marry the guy. Thanks everybody.