Confused about what to do

[Minya's wife 25]

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.

According to the OP they've been living together for 8 months and prior to that she lived w/ her sister for "a few months", so conservatively speaking she's now overstayed her I-94 by at least 6 months.

She now has a 3 year ban, if she overstays by more than 12 months, she will have a 10 year ban. IMO there is a heck of a lot of difference between the justifications for waiving a 3 year ban then a 10 year one. (i.e. explaining why you didn't leave after six months of overstaying and before you passed the 12month mark.) And no, I don't think "waiting to see what they do with the I-130 that I filed" is not a good enough justification to waive a 10 year ban.

There is sense in leaving the country at this moment....or at the very least before an overstay greater than 12 months is incurred - regardless of I-130 outcome.

-P

[Rocky_nBullwinkle 6]

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)

It's fun trying to decipher immigration law, isn't it?

The section(s) you cited are exactly what defines the K-1 Visa process. What we have here, for the case of arguement, is the petition for an immediate relative, which would refer us to a different section.

(6) Any alien who files an application for adjustment of status on or after November 6, 1986, who has failed (other than through no fault of his or her own or for technical reasons) to maintain continuously a lawful status since entry into the United States, except an applicant who is an immediate relative as defined in section 201(B) of the Act or a special immigrant as defined in section 101(a)(27) (h) , (I) , or (J) of the Act;

And once the I-130 is filed and approved, the following section would apply:

(4) Any alien who claims immediate relative status under section 201(B) or preference status under sections 203(a) or 203(B) of the Act, unless the applicant is the beneficiary of a valid unexpired visa petition filed in accordance with Part 204 of this chapter; (Amended effective 4/1/97; 62 FR 10312 )

This is why the lawyers get the big money.

[mellowgeorge 1]

sonomagal: the big difference is that the japanese 'gal' actually got married, giving her some more leverage and legalizing her stay in the US.

[Minya's wife 25]

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)

It's fun trying to decipher immigration law, isn't it?

The section(s) you cited are exactly what defines the K-1 Visa process. What we have here, for the case of arguement, is the petition for an immediate relative, which would refer us to a different section.

(6) Any alien who files an application for adjustment of status on or after November 6, 1986, who has failed (other than through no fault of his or her own or for technical reasons) to maintain continuously a lawful status since entry into the United States, except an applicant who is an immediate relative as defined in section 201( B) of the Act or a special immigrant as defined in section 101(a)(27) (h) , (I) , or (J) of the Act;

And once the I-130 is filed and approved, the following section would apply:

(4) Any alien who claims immediate relative status under section 201( B) or preference status under sections 203(a) or 203( B) of the Act, unless the applicant is the beneficiary of a valid unexpired visa petition filed in accordance with Part 204 of this chapter; (Amended effective 4/1/97; 62 FR 10312 )

This is why the lawyers get the big money.

But unfortunately, the OP's wife's first status- that of a K-1 visa holder who did NOT MARRY the USC who petitioned her, takes precedence in the pecking order, so regardless of the I-130 approval, she is not eligible to file for AOS here in the country. And if you file concurrently (as some do) the I-485 gets denied outright, based on ineligibility.

-P

[spookyturtle 9,466]

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

The waiver must prove extreme hardship to the US citizen. Waivers in the Phillipines are almost impossible to get. Check out immigrate2us.net, the best site for waivers. There has been one person who has gotten a waiver from the Phillipines ion hte past 2 years or so. It is extremely difficult to do. The job situation alone will probably not be enough.

[Shakil 4]

Okay, I talked to the lawyer just now. He told me that in normal circumstances no one is allowed to adjust status if marriage does not happen in 90 days with the petitioner, but since there is abuse involved there is a chance. Waiver (I-601) does get filed inside US, whoever said that had the wrong information. There is a whole forum on this visit http://immigrate2us.net/forum/forumdisplay.php?f=76. During adjudication, interviewer can ask for a waiver if condition exists and waiver is available. Unfortunately, to make that waiver available, you are going to have to fight for it. That's where immigration courts come in. We have a client who over stayed visa for 8 years (B1/B2), then registered with ICE, had deportation order but still got his green card along with his wife, because the children were minor and US citizens, 3 of them, thats what happens with a good lawyer and immigration court. If cases like that can go through, I won't be surprised if this goes through.

[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.

According to the OP they've been living together for 8 months and prior to that she lived w/ her sister for "a few months", so conservatively speaking she's now overstayed her I-94 by at least 6 months.

She now has a 3 year ban, if she overstays by more than 12 months, she will have a 10 year ban. IMO there is a heck of a lot of difference between the justifications for waiving a 3 year ban then a 10 year one. (i.e. explaining why you didn't leave after six months of overstaying and before you passed the 12month mark.) And no, I don't think "waiting to see what they do with the I-130 that I filed" is not a good enough justification to waive a 10 year ban.

There is sense in leaving the country at this moment....or at the very least before an overstay greater than 12 months is incurred - regardless of I-130 outcome.

-P

Good point, didn't realize ban increase to 10 years. So with this fact it becomes crucial to know the I-94 expiry date. I would say, stay for as long you don't know your I-130 outcome but leave before the 12 month anniversary of your I-94 expiration.

[spookyturtle 9,466]

Okay, I talked to the lawyer just now. He told me that in normal circumstances no one is allowed to adjust status if marriage does not happen in 90 days with the petitioner, but since there is abuse involved there is a chance. Waiver (I-601) does get filed inside US, whoever said that had the wrong information. There is a whole forum on this visit http://immigrate2us.net/forum/forumdisplay.php?f=76. During adjudication, interviewer can ask for a waiver if condition exists and waiver is available. Unfortunately, to make that waiver available, you are going to have to fight for it. That's where immigration courts come in. We have a client who over stayed visa for 8 years (B1/B2), then registered with ICE, had deportation order but still got his green card along with his wife, because the children were minor and US citizens, 3 of them, thats what happens with a good lawyer and immigration court. If cases like that can go through, I won't be surprised if this goes through.

Can you site an example from immigrate2us where someone didn't marry the petitioner, married someone else shortly thereafter and then was granted adjustment of status because of abuse by the original pettioner that was never reported?

So you work for a lawyer as you state that we have a client?

[john_and_marlene 162]

Okay, I talked to the lawyer just now. He told me that in normal circumstances no one is allowed to adjust status if marriage does not happen in 90 days with the petitioner, but since there is abuse involved there is a chance. Waiver (I-601) does get filed inside US, whoever said that had the wrong information. There is a whole forum on this visit http://immigrate2us.net/forum/forumdisplay.php?f=76. During adjudication, interviewer can ask for a waiver if condition exists and waiver is available. Unfortunately, to make that waiver available, you are going to have to fight for it. That's where immigration courts come in. We have a client who over stayed visa for 8 years (B1/B2), then registered with ICE, had deportation order but still got his green card along with his wife, because the children were minor and US citizens, 3 of them, thats what happens with a good lawyer and immigration court. If cases like that can go through, I won't be surprised if this goes through.

Can you site an example from immigrate2us where someone didn't marry the petitioner, married someone else shortly thereafter and then was granted adjustment of status because of abuse by the original pettioner that was never reported?

So you work for a lawyer as you state that we have a client?

I too would like to know of even 1 such case. B1/B2 entry cases do not have the same issue with the rules that govern only K visas.

I know somebody who had a friend that..... <---- doesn't cut it

30 years ago my aunt was able to..... <---- doesn't cut it

The example must be since 1986 to include this specific area and would be more convincing if it was since the revisions in 2000 that further clarified restrictions.

[spookyturtle 9,466]

[i too would like to know of even 1 such case. B1/B2 entry cases do not have the same issue with the rules that govern only K visas.

I know somebody who had a friend that..... <---- doesn't cut it

30 years ago my aunt was able to..... <---- doesn't cut it

The example must be since 1986 to include this specific area and would be more convincing if it was since the revisions in 2000 that further clarified restrictions.

I agree. Adjusting from a B1/B2 upon marriage to a US cfitizen is quite common. We would need a lot more details of tbe case Shakil stated. Why would an overstay who married a citizen turn themselves over to ICE when the law allows them to adjust status? Were they guilty of a crime and in removal proceedings? Lots of grey area there. Apples and oranges to a K-1 visa.

[Shakil 4]

Well interestingly, he was on B-1/B-2 out of status, wife on b1/b2 out of status, 3 children all US Citizens UNDER 18.

[Dr Mirage 0]

The case is pretty messed up. I have a headache thinking of how this happened.

Call your lawyer and keep us updated.

Its a tough case.

Good luck!

Edited October 15, 2008 by Dr Mirage

[Shakil 4]

Well interestingly, he was on B-1/B-2 out of status, wife on b1/b2 out of status, 3 children all US Citizens UNDER 18. All I am saying is that sometimes circumstances like abuse as stated in this case sometimes can play a strong role in getting sympathy from the judge even if it just lowers the bar. I am not saying that it will be approved or not. I am just implying that it is something to be looked at and have a lawyer look at. Sometimes lawyers do come up with things that you and I don't think of in a normal situation.

[spookyturtle 9,466]

Well interestingly, he was on B-1/B-2 out of status, wife on b1/b2 out of status, 3 children all US Citizens UNDER 18.

You do work for a lawyer, correct?

[njaxfl 0]

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?

I had a very likely situation with your wife but i was never maltreated with my ex fiance,but since i was under on a K1 visa i should go home back to the Philippines before my 90 days visa expired as given to every K1,and she should have done the same thing coz right now,her visa is way expired and she's been here in the US for how many months and that consider over staying..she might have some problems with the immigration.i'm positive that she cant marry you or adjust any status here in the US..there is no way you could do to make her stay here in the US more than 8 months coz if no marriage on K1,she must have gone back to the Philippines-that's the law.My advice now is,send her back to the Philippines and talk to an Immigration lawyer regarding her situation..