Confused about what to do

[payxibka 10,048]

Best bet, stay here and get a good lawyer. There are enough extenuating circumstances that you should get a waiver. Once you leave the US, then the clock starts again. Besides, since it often takes years to adjudicate these cases, time is on your side. Just stay out of trouble, and don't give them a reason to deport her. Of course, she can not leave the country without some form of advance parole.

What kind of waiver? and what would be the extenuating circumstances?

My husband tells me of a Japanese gal, whose husband abused her. She ended up with a green card, a new house, and half his assets.

Did she arrive on a K-1 and then marry someone else?

[Rocky_nBullwinkle 6]

Best bet, stay here and get a good lawyer. There are enough extenuating circumstances that you should get a waiver. Once you leave the US, then the clock starts again. Besides, since it often takes years to adjudicate these cases, time is on your side. Just stay out of trouble, and don't give them a reason to deport her. Of course, she can not leave the country without some form of advance parole.

What kind of waiver? and what would be the extenuating circumstances?

My husband tells me of a Japanese gal, whose husband abused her. She ended up with a green card, a new house, and half his assets.

Did she arrive on a K-1 and then marry someone else?

I suppose not. But then, abuse would be an extenuating circumstance, as well as the fact that she did marry a US citiizen, after her initial petitioner failed to make good his intention to marry her.

[spookyturtle 9,466]

Did she arrive on a K-1 and then marry someone else?

I suppose not. But then, abuse would be an extenuating circumstance, as well as the fact that she did marry a US citiizen, after her initial petitioner failed to make good his intention to marry her.

If she had married the petitioner and he abused her, she may have had a case. She didn't, she married someone else, which means she cannot adjust status without leaving the country. From what the OP has stated, she has already overstayed by at least 6 months, incurring the 3 year ban which can only be overcome by a waiver, again, she must leave the country to file the waiver. If this is the same person who has previously started a thread about this with a different user ID, the woman in quesstion married someone else within weeks of meeting them.

In any case, if the details as posted are true, there is a slight chance that this woman can become legal, but not while remaining in the US and not without a waiver.

[spookyturtle 9,466]

Here is the link to the thread that is strikingly similar.

http://www.visajourney.com/forums/index.php?showtopic=152960

[Otto 83]

OP disappeared...

[Tanjay 0]

I don't like it, when that happens....

[john_and_marlene 162]

The LAW restricting adjustment of status for a K1 through marriage only to the original petitioner is not waiverable and is not decided on a case by case basis. There are no loopholes...there is no evaluation of extenuating circumstances...a lawyer cannot make it work. Just because you may feel that the OP has extenuating circumstances and really should be allowed to stay doesn't change the law. Advice to stay in the US could be the very worst advice. If you haven't overstayed a full year yet, the reentry ban is only 3 years. Overstaying a year or more will raise that ban to 10 years.

In the event a new visa application based on the spouse petition is denied due to the overstay and a hardship waiver is not approved, it would be much quicker to wait out a 3 year bar than a 10 year bar.

To make this clear: There is NO path the K1 married to someone other than the original petitioner can take to become legal other than leaving the country and starting a new petition.

Edited October 14, 2008 by john_and_marlene

[Eric-Pris 1,610]

OP disappeared...

They didn't like what they heard.

[acidentaly_n_LOVE 0]

Best bet, stay here and get a good lawyer. There are enough extenuating circumstances that you should get a waiver. Once you leave the US, then the clock starts again. Besides, since it often takes years to adjudicate these cases, time is on your side. Just stay out of trouble, and don't give them a reason to deport her. Of course, she can not leave the country without some form of advance parole.

What kind of waiver? and what would be the extenuating circumstances?

My husband tells me of a Japanese gal, whose husband abused her. She ended up with a green card, a new house, and half his assets.

Well, I believed that the guy marry her thats why she ended up getting half of his assets, greencard and a new house. this case is way much different to this case that the guy having troubled about. It would be wise if they will talk to immigration lawyer to consult the case I know they have some advice for these.

[Rocky_nBullwinkle 6]

The LAW restricting adjustment of status for a K1 through marriage only to the original petitioner is not waiverable and is not decided on a case by case basis. There are no loopholes...there is no evaluation of extenuating circumstances...a lawyer cannot make it work. Just because you may feel that the OP has extenuating circumstances and really should be allowed to stay doesn't change the law. Advice to stay in the US could be the very worst advice. If you haven't overstayed a full year yet, the reentry ban is only 3 years. Overstaying a year or more will raise that ban to 10 years.

In the event a new visa application based on the spouse petition is denied due to the overstay and a hardship waiver is not approved, it would be much quicker to wait out a 3 year bar than a 10 year bar.

To make this clear: There is NO path the K1 married to someone other than the original petitioner can take to become legal other than leaving the country and starting a new petition.

I just did something that most of the posters failed to do. I actually went to http://uscis.gov and checked out what they had to say. If you go to the "How do I"section for U.S. Citizens, and asked, "How do I make my relative a permanent resident", you will note that for a "person legally entering the country", you may file a I-130 petition the same time as you file I-485, adjusting status to permanent resident.

Again, if all is as the OP stated, then this would be a path. However, getting a lawyer, would be a good suggestion.

[john_and_marlene 162]

The LAW restricting adjustment of status for a K1 through marriage only to the original petitioner is not waiverable and is not decided on a case by case basis. There are no loopholes...there is no evaluation of extenuating circumstances...a lawyer cannot make it work. Just because you may feel that the OP has extenuating circumstances and really should be allowed to stay doesn't change the law. Advice to stay in the US could be the very worst advice. If you haven't overstayed a full year yet, the reentry ban is only 3 years. Overstaying a year or more will raise that ban to 10 years.

In the event a new visa application based on the spouse petition is denied due to the overstay and a hardship waiver is not approved, it would be much quicker to wait out a 3 year bar than a 10 year bar.

To make this clear: There is NO path the K1 married to someone other than the original petitioner can take to become legal other than leaving the country and starting a new petition.

I just did something that most of the posters failed to do. I actually went to http://uscis.gov and checked out what they had to say. If you go to the "How do I"section for U.S. Citizens, and asked, "How do I make my relative a permanent resident", you will note that for a "person legally entering the country", you may file a I-130 petition the same time as you file I-485, adjusting status to permanent resident.

Again, if all is as the OP stated, then this would be a path. However, getting a lawyer, would be a good suggestion.

There is a specific restriction on K1 entry that prohibits this.

[john_and_marlene 162]

http://www.uscis.gov/propub/DocView/slbid/...te=#0-0-0-15955

( c ) Ineligible aliens . The following categories of aliens are ineligible to apply for adjustment of status to that of a lawful permanent resident alien under section 245 of the Act: (Added 10/1/94; 59 FR 51091 )

( 6 ) Any alien admitted to the United States as a nonimmigrant defined in section 101(a)(15)(K) of the Act, unless: (Revised 8/14/01; 66 FR 42587 ) (Amended effective 4/1/97; 62 FR 10312 )

( i ) In the case of a K-1 fiance(e) under section 101(a)(15)(K)(i) of the Act or the K-2 child of a fiance(e) under section 101(a)(15)(K)(iii) of the Act, the alien is applying for adjustment of status based upon the marriage of the K-1 fiance(e) which was contracted within 90 days of entry with the United States citizen who filed a petition on behalf of the K-1 fiance(e) pursuant to § 214.2(k) of this chapter;

---------------------------------------

Submitting the I-485 in conjunction with an new I-130 petition based on marriage falls under section 245.

Ineligible aliens for AOS under this section include K1 visas (section 101 (a ) (15) ( K ) ) unless the alien is applying for adjustment of status based upon the marriage of the K-1 fiance(e) which was contracted within 90 days of entry with the United States citizen who filed a petition on behalf of the K-1 fiance(e) pursuant to § 214.2(k)

[ManuFred 10]

Well my story is not like so many others, but I hope I can find some help for me and my wife. My wife enter the usa with K1 Visa but the guy who brought her to the usa, did not marry her, wanted her to just stay here with him, he did not treat her very well. She had a sister that lived in usa, that had married someone here...., so her sister went and got her out of the sitituation she was in with the man that brought her to USA with K1. She did not know what to do , she did not have money to go back home to philippines, so she stay with her sister for a few months....i met her after she had been with her sister for a few months, we fell in love and got married. I did not know much about the laws...but begin to read a little at the ucis web site.

It said i could not file a i465 aos but to file i130.. my wife lives with me for the last 8 months, we filed i130 in april 2008. still waiting, our concern now with reading new rules, will she have to leave the country or can she stay here and be interviewed. if so do we need to file hardship waiver to keep her here with me? do i need to file the i465?

Let's see what they do with your I-130. Outcome of that will come soon is what I suppose. If I-130 is denied hire a lawyer to appeal your case, otherwise just get the VISA where they tell you to get it and come back. If you end up in trouble getting your VISA or re-entering US you also hire a lawyer. Doesn't make any sense to me leaving the country at this moment so close to I-130 outcome. You have violated the terms of K1 anyway. Leaving the country doesn't make it any better since the bar is yours already.

[spookyturtle 9,466]

Let's see what they do with your I-130. Outcome of that will come soon is what I suppose. If I-130 is denied hire a lawyer to appeal your case, otherwise just get the VISA where they tell you to get it and come back. If you end up in trouble getting your VISA or re-entering US you also hire a lawyer. Doesn't make any sense to me leaving the country at this moment so close to I-130 outcome. You have violated the terms of K1 anyway. Leaving the country doesn't make it any better since the bar is yours already.

The I-130 will in all likelyhood be approved. The I-485 will be denied. If the overstay is over 6 month but less than one year the ban is 3 years, if it is over 1 year, the ban is 10 years. Big difference, especially in a country where obtaining a waiver is almost impossible. If the person leaves before the overstay reaches a year, they have a chance to come back in 3 years, waiver or no waiver.

[john_and_marlene 162]

Let's see what they do with your I-130. Outcome of that will come soon is what I suppose. If I-130 is denied hire a lawyer to appeal your case, otherwise just get the VISA where they tell you to get it and come back. If you end up in trouble getting your VISA or re-entering US you also hire a lawyer. Doesn't make any sense to me leaving the country at this moment so close to I-130 outcome. You have violated the terms of K1 anyway. Leaving the country doesn't make it any better since the bar is yours already.

The I-130 will in all likelyhood be approved. The I-485 will be denied. If the overstay is over 6 month but less than one year the ban is 3 years, if it is over 1 year, the ban is 10 years. Big difference, especially in a country where obtaining a waiver is almost impossible. If the person leaves before the overstay reaches a year, they have a chance to come back in 3 years, waiver or no waiver.

Exactly regarding the overstay... depending on the current length of overstay, advice to stay may be the most detrimental advice possible.

As for the hardship waiver... the job situation in the Philippines would probably tend to help the waiver rather than hinder it.

Edited October 14, 2008 by john_and_marlene