Submitting I-130/485 AOS a second time

[ScottishTom 2]

I'm not sure if anyone will be able to help or not but at the least I hope someone might have some input and be able to point me in the right direction.

 

The situation is a little less than straight forward, so I will try and run through the time line briefly with the main focus points.

 

• I met my ex wife in Scotland when she was traveling there 11 years ago. I'm from Scotland, and she was from San Francisco. We travelled back and forth for 2 years visiting each other every couple of months, always on VWP. 9 years ago on my last of the trips on VWP, I was visiting for a couple of months during the summer vacation and we decided to get married.
• After we married we worked with a lawyer to assemble our AOS I-130/I-485 package. We submitted and everything accepted, I received my Employment Auth Documents and quickly found a job and began to work. We received our interview letter which was set for 3 months later, almost exactly a year after we submitted.
• The relationship ended however a couple of months before the interview date. My lawyer suggested I attend the meeting however to explain to them what had happened. I attended and that was it.  Divorce was filed and completed the following year.
• Due to personal reasons, I decided however to not return to Scotland and continued to live in San Francisco, and also continued to work at the job I had gained with my EAD.  I have worked this same job ever since.
• A couple of months after the planned interview, I received a couple of documents in the mail saying my previous applications had been cancelled, but those were the only documents or contact I had from the USCIS, and haven't received any others to the best of my knowledge.
• 2 and a half years ago in San Francisco, I met my now fiancee who is an American citizen.
• We got engaged 8 months ago and are getting married in a couple of weeks, and plan to submit AOS I-130/I-485 documents shortly after which is why we are planning now.
• I plan on leaving my job next week also, as I know I am unable to work whilst going through this application process.

 

My question is, I'm certain there will be some complications along the way (I am aware I wasn't fully able to work during the period after the interview and those aspects), but does anyone have any knowledge on what they might be? Is there anything in particular we will need to include in this application, due to the previous application? Anything else I should be aware of? 

 

We are planning to file ourselves. With that, does anyone know whether I will have to go back for the medical and biometrics appointments? Do I have to include any documents to highlight any of the above?

 

Any other help is always welcomed!

[Roel 7,191]

You don't have to go back. I mean you can but then you'll be banned for 10 years from entering the USA.

 

And I find it funny how you decided to quit your job just now. You have been working illeglay for the past 2 years. The moment you divorce- the moment your AOS was canceled you became illegal. Your work permit was useless and your employer might be in trouble for hiring you. I'm shocked they didn't fire you the moment your ead was expired. 

[HoosierEh 21]

Hi,

 

I had no inclination of Googling for information when it came time for me to fix my situation. I left the US and my husband to put things right from Canada. Leaving is how I received the bar for overstay and I required a waiver to get back home so in this regard you are fortunate to have people here with sound advice. 

 

I just wanted to say good luck and now you know not to leave. 

 

Cheers

[Russ&Caro 1,548]

This doesn't seem to be a do it yourself case. Suggest you get an attorney. You've been out of status for many years and as Roel stated, your EAD expired years ago, too. There are too many issues for DIY. Consider yourself lucky that you've been able to stay employed and live in the US for all these years, not to mention meeting your new love. Time to pay the fiddler (lawyer) and get it done the right way with your new spouse. BTW, without a lawyer you run the risk of being sent a Notice to Appear (NTA) before an immigration judge for deportation proceedings. At that point you'll pay a whole lot to a lawyer. If you engage a lawyer now you might avoid an NTA.

[mushroomspore 3,043]

I would also advise getting a lawyer. Your first marriage and AoS application are not really the issue here. Your decisions to stay AND work illegally are. Plus as @Roel said, your employer very well could end up in a lot of trouble because they were not supposed to keep you employed after your first application was cancelled. You will have to disclose that you were employed too, so it's not like you can hide it by omission either. This is too complicated to DIY. As stated above, you're still at risk of receiving an NTA and telling an immigration judge that you stayed illegally in the US due to "personal reasons" will not bode well. You need a lawyer, no matter how the circumstances play out for you.

[Crazy Cat 39,218]

I read your post an hour ago.  The more I think about it, the more I think this is not going to be a simple case.  This is not a simple "I overstayed a tourist visa" case. Are you sure you are not currently under a deportation order?  It seems to me also that you violated the terms of AOS, which could cause you to be inadmissible..........I would seek legal help from an experienced attorney.

[TM92 527]

1 hour ago, ScottishTom said:

I plan on leaving my job next week also, as I know I am unable to work whilst going through this application process.

Past employment and your current illegal status will not be considered, https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter8.html:

Quote

B. Immediate Relatives

 

Certain adjustment bars do not apply to an immediate relative, including the spouse or child (unmarried and under 21 years old) of a U.S. citizen, and the parent of a U.S. citizen older than 21.

 

An adjustment applicant applying as an immediate relative may be eligible to adjust status even if:

• The applicant is now employed or has ever been employed in the United States without authorization;
• The applicant is not in lawful immigration status on the date he or she files the adjustment application;
• The applicant has ever failed to continuously maintain a lawful status since entry into the United States;
• The applicant was last admitted to Guam or the Commonwealth of the Northern Mariana Islands (CNMI) as a visitor under the Guam or CNMI Visa Waiver Program and is not a Canadian citizen;
• The applicant was last admitted to the United States as a nonimmigrant visitor without a visa under the Visa Waiver Program; or
• The applicant has ever violated the terms of his or her nonimmigrant status.

We are unable to condone future unauthorized employment, as per VJ's TOS:

Quote

Condone or instruct, either directly or indirectly, others on how to commit fraudulent or illegal immigration activities in any way, shape, manner or method.

When you file the I-485, you still won't have lawful status but you will have "authorized stay" allowed by the US Attorney General.

[Crazy Cat 39,218]

I just found this....  http://www.asianjournal.com/immigration/immigration-columnists/k-1-fiancee-adjusting-status-after-a-separation-or-divorce/

 

In this case, the man (after 2nd marriage)  had to adjust status through his first marriage even though he had been divorced several years.

 

 

[TM92 527]

15 minutes ago, missileman said:

I just found this....  http://www.asianjournal.com/immigration/immigration-columnists/k-1-fiancee-adjusting-status-after-a-separation-or-divorce/

 

In this case, the man (after 2nd marriage)  had to adjust status through his first marriage even though he had been divorced several years.

In the case you found it was because it is a K1 adjustment bar that can only be overcomed in very limited situations (VAWA for example), https://www.uscis.gov/policymanual/Print/PolicyManual-Volume7-PartB-Chapter7.html:

Quote

F. Nonimmigrant Admitted as Fiancé(e) of U.S. Citizen

 

A foreign national fiancé(e) of a U.S. citizen cannot adjust status except on the basis of the marriage to the U.S. citizen who filed a Petition for Alien Fiancé(e) (Form I-129F) on behalf of the fiancé(e). Likewise, a child of the fiancé(e) may only adjust on the basis of his or her parent’s marriage to the U.S. citizen petitioner.

 

The terms of the nonimmigrant fiancé(e) status require that the nonimmigrant fiancé(e) marry the petitioner within 90 days after becoming a nonimmigrant. Furthermore, if the nonimmigrant has not been married for two years or more at the time of adjustment, the nonimmigrant fiancé(e) and any children of the fiancé(e) may only obtain permanent residence on a conditional basis.

 

Marriage Legally Terminated

 

A nonimmigrant fiancé(e) who contracts a valid and bona fide marriage to the U.S. citizen petitioner within the requisite 90-day time period remains eligible to adjust status on that basis, even if the marriage is legally terminated (whether by death, dissolution, or divorce) prior to adjustment of status and regardless of whether the nonimmigrant fiancé(e) remarries thereafter. The applicant remains subject to all conditional permanent residency requirements, if applicable.

OP entered on VWP, not K1. OP eventually filed I-485 concurrently with ex's I-130:

1 hour ago, ScottishTom said:

• I met my ex wife in Scotland when she was traveling there 11 years ago. I'm from Scotland, and she was from San Francisco. We travelled back and forth for 2 years visiting each other every couple of months, always on VWP. 9 years ago on my last of the trips on VWP, I was visiting for a couple of months during the summer vacation and we decided to get married.
• After we married we worked with a lawyer to assemble our AOS I-130/I-485 package. We submitted and everything accepted, I received my Employment Auth Documents and quickly found a job and began to work. We received our interview letter which was set for 3 months later, almost exactly a year after we submitted.

Edited August 10, 2018 by TM92

[Crazy Cat 39,218]

1 minute ago, TM92 said:

In the case you found it was because it is a K1 requirement that can only be overcomed in very limited situations (VAWA for example), https://www.uscis.gov/policymanual/Print/PolicyManual-Volume7-PartB-Chapter7.html:

OP entered on VWP, not K1; OP eventually filed I-485 concurrently with ex's I-130:

You are absolutely correct.  I was thinking the OP came on a K-1 initially......thanks for correcting me.

[Russ&Caro 1,548]

13 minutes ago, missileman said:

You are absolutely correct.  I was thinking the OP came on a K-1 initially......thanks for correcting me.

Yeah, I sort of overlooked this too when giving advice. That said, OP consulting with a lawyer still isn't a bad idea.

[Crazy Cat 39,218]

Just now, Russ&Caro said:

Yeah, I sort of overlooked this too when giving advice. That said, OP consulting with a lawyer still isn't a bad idea.

I agree 1000%.....I still dont think this is DIY.

[ScottishTom 2]

1 hour ago, Roel said:

And I find it funny how you decided to quit your job just now. You have been working illeglay for the past 2 years. The moment you divorce- the moment your AOS was canceled you became illegal. Your work permit was useless and your employer might be in trouble for hiring you. I'm shocked they didn't fire you the moment your ead was expired. 

Completely understand.  I know I should not have been working as soon as the AOS was canceled, it's not an excuse, but with the situation I had at the time, it was the lower of two evils, and I made that decision based on that. I'm fully aware of what I did, now I'm looking for the advise on how to move onwards with my current situation.

 

1 hour ago, Russ&Caro said:

Consider yourself lucky that you've been able to stay employed and live in the US for all these years, not to mention meeting your new love. Time to pay the fiddler (lawyer) and get it done the right way with your new spouse. BTW, without a lawyer you run the risk of being sent a Notice to Appear (NTA) before an immigration judge for deportation proceedings. At that point you'll pay a whole lot to a lawyer. If you engage a lawyer now you might avoid an NTA.

Very lucky, I know that.  Especially to have met the new love.

 

54 minutes ago, mushroomspore said:

Your first marriage and AoS application are not really the issue here. Your decisions to stay AND work illegally are. Plus as @Roel said, your employer very well could end up in a lot of trouble because they were not supposed to keep you employed after your first application was cancelled. You will have to disclose that you were employed too, so it's not like you can hide it by omission either. This is too complicated to DIY. As stated above, you're still at risk of receiving an NTA and telling an immigration judge that you stayed illegally in the US due to "personal reasons" will not bode well. You need a lawyer, no matter how the circumstances play out for you.

From what I understand, past employment especially that under illegal status is not part of consideration when adjusting through a I-130 and I-485? If thats the case, do you know how they might become an issue? I'm aware of what I did, and the reasons for doing so I'm not going to go through on here, but I am aware of what I did, and that it didn't fall under the law. My Goa, is to attempt to move forward legally.

 

54 minutes ago, missileman said:

I read your post an hour ago.  The more I think about it, the more I think this is not going to be a simple case.  This is not a simple "I overstayed a tourist visa" case. Are you sure you are not currently under a deportation order?  It seems to me also that you violated the terms of AOS, which could cause you to be inadmissible..........I would seek legal help from an experienced attorney.

I cant be 100% no.  I would like to think I would have known, but I can't be sure, I don;'t believe so however. Do you know how I would check to find out? I checked all old case numbers and there wasn't nothing mentioned there. I checked through all my email communications and I had nothing there, and nothing in the mail (although things do go missing and not arrive).

 

Also, I never completed my AOS, so my hope is nothing was violated, as I never adjusted.

 

 

32 minutes ago, TM92 said:

Past employment and your current illegal status will not be considered, https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter8.html:

We are unable to condone future unauthorized employment, as per VJ's TOS:

When you file the I-485, you still won't have lawful status but you will have "authorized stay" allowed by the US Attorney General.

My apologies, I will not mention anything regarding future unauthorized employment, especially as there will be none.  Thank you for pointing it out, and allowing me to continue the conversation.

 

 

12 minutes ago, TM92 said:

In the case you found it was because it is a K1 adjustment bar that can only be overcomed in very limited situations (VAWA for example), https://www.uscis.gov/policymanual/Print/PolicyManual-Volume7-PartB-Chapter7.html:

OP entered on VWP, not K1. OP eventually filed I-485 concurrently with ex's I-130:

Yes, I entered under a VWP, not a K1.  

[ScottishTom 2]

One thing I forgot to mention in the original post, was after my first marriage, I overstayed my VWP whilst we were submitting paperwork as it took far longer than expected due to having retrieve documents that were missing.  My over stay was around 170 days if I remember right.  I don't know if after that day my application was cancelled the overstay dates start again, but im thinking so, or im not sure if after so many years, the original 170 days means anything anymore. I didn't receive any further communication from the USCIS after everything was cancelled however.

[TM92 527]

28 minutes ago, ScottishTom said:

My over stay was around 170 days if I remember right.

Not an issue, from my first post: "The applicant has ever failed to continuously maintain a lawful status since entry into the United States"

28 minutes ago, ScottishTom said:

I didn't receive any further communication from the USCIS after everything was cancelled however.

When you went to the interview, did the USCIS officer allow you to withdraw your I-485? Or did they issue a denial?

@missileman, @pushbrk, @geowrian: If it was the latter, is there an adjustment bar?

Edited August 10, 2018 by TM92