wife's gone crazy

[jackcourtney 4]

So now my wife is getting crazy and she wants divorce well to be more specific she wants an annulment and she thinks we didn't take our time before getting married... we have been married only for 4 months. i came on a k1 visa... i know that if we didn't get married i would have to leave the country and won't be able to adjust status in any way but since we got married, am i still able to adjust status even if we divorce??? i have EAD but no green card yet. please if you have experience reply if not then don't. i have just read this post and it seems kinda positive.

Thank you

K1 Adjustment of Status After Divorce: Is it Possible?

Under US immigration law when a foreign national enters the US on a K1 (fiancée) visa, he or she must marry the US citizen fiancé(e) (the petitioner) within 90 days of their arrival in the United States. After marriage they have to file for Adjustment of Status.

If the marriage is less than 2 years old at the time the adjustment is granted the foreign national will be given ‘Conditional Residency,’ valid for two years. At the end of the two years, the couple must file a “joint petition” to remove the conditions on the green card.

But what happens if everything doesn’t go as planned and the couple gets divorced while their adjustment application is pending; before the green card is granted? (i.e. the foreign national enters on a K visa, files for adjustment of status, but before the initial adjustment interview, the couple gets divorced). The issue recently came before the Ninth Circuit Court of Appeals.

Decision of the Ninth Circuit Court of Appeals on K1 Adjustment of Status After Divorce in CHOIN VS. MUKASEY, 537 F.3d 116 (9th Cir. 2008)

Facts of the case:

Yelena Choin was admitted to the U.S. in 1998 as the fiancée of a US citizen, and her two children were admitted in K-2 status. On February 20, 1999, Yelena married her US citizen fiancé, Albert Tapia, and on April 14, she and her children applied for adjustment of status. Almost two years later, on April 9, 2001, five days short of their second wedding anniversary, Choin and Tapia divorced.

Yelena's immigration nightmare began on August 27, 2001, when the USCIS denied her adjustment application because of the divorce, and placed her in removal proceedings. An Immigration Judge also denied her adjustment application and the Board of Immigration Appeals (BIA) agreed with the IJ. The BIA also denied Yelena's Motion for Reconsideration.

USCIS Arguments:

The USCIS based their decision on the fact that the marriage was no longer viable. It was argued by the USCIS that a K1 visa holder is ineligible to adjust status to lawful permanent residence if the marriage ends before the USCIS adjudicates the application for his or her K1 adjustment of status.

Petitioner’s Argument:

Yelena challenged the BIA's ruling before the 9th Circuit Court of Appeals. The principal issue was whether the Immigration Judge and the BIA had properly interpreted section 245(d) of the Immigration and Nationality Act, which holds that –

the Attorney General may not adjust . . . the status (K visa) except to that of an alien lawfully admitted to the United States on a conditional basis under section 1186a of this title as a result of the marriage of the nonimmigrant . . . to the citizen who filed the K visa petition. (Emphasis added)

Opinion of the Court:

On August 12, 2008, in an important immigration decision, the court held that foreign nationals who marry their fiancé after entering the United States on a K-1 fiancé visa, and who subsequently obtain a divorce prior to obtaining permanent resident status, are still entitled to adjust to resident status.

The Appeals Court held that it found nothing in the plain language of Section 245 (d) suggesting that an application that was valid when submitted should be automatically invalid when the petitioner’s marriage ends by divorce 2 years later. The Court also held that the purpose and context of § 245(d) also do not support the government's reading of the statute that requires the automatic removal of immigrants whose marriages end in divorce while their application for adjustment of status languishes in the agency's file cabinet.

The Court relied on their previous holding in Freeman vs. Gonzalez, 444 F.3d 1031 and as a result of the Court's decision in Choin vs. Mukasey, Yelena's immigration nightmare finally ended.

This holding continues a long line of cases (Matter of Boromand, Matter of McKee) that hold that a marriage must only be valid at inception. Indeed, the parties do not need to be married at the time USCIS adjudicates the adjustment application.

FREEMAN vs. GONZALEZ

In Freeman vs. Gonzalez, 444 F.3d 1031 (9th Cir. 2006) it was held that if a marriage to the US citizen was bona fide, the fact that the citizen spouse dies before the USCIS makes a final decision on the application for adjustment of status does not stop it from being approved.

Conclusion:

The government has long refused to grant adjustment of status for K visa recipients whose good faith marriage ended in divorce prior to the adjudication of the adjustment application. It is gratifying to see that the termination of the good faith marriage through divorce need not result in the removal of the K visa holder when it is the government that takes several years to adjudicate the applications.

Prior to the Choin decision, the USCIS would have denied the application for K1 adjustment of status after divorce, since the marriage was no longer in existence. However this is no longer true, at least for applications submitted by persons who live in any of the states within the jurisdiction of the US Court of Appeals for the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Oregon and Washington).

Thus, if you enter into a bona fide marriage, but unfortunately the US citizen spouse dies, or the marriage ends in divorce before the USCIS makes a decision on the application for K1 adjustment of status, don’t panic. The 9th Circuit's holdings in Freeman vs. Gonzalez and Choin vs. Mukasey may save you from deportation and allow you to adjust your status to permanent resident.

If you have questions about what steps you should take in your particular situation, consult a VisaPro immigration attorney. We will be happy to guide you through the process.

[del-2-5-2014 1,339]

You got married so you should be safe generally but you will need convincing evidence of entering the marriage in good faith, tons but you have very little after short marriage.

[jackcourtney 4]

Thank you for your reply, i believe i have enough evidence, we lived together in a different country for a while.... do you know if visapro is reliable, they charge $75 for phone consultation....

please if anyone has some additional info share it with me, what should i do ?? can i still adjust even if we divorce or do i have to be married to another U.S citizen in order for me to adjust my status?

thank you

[TheZ 0]

Getting married to another USC will not help as you entered US with a K1 visa and only the fiance that filed for you can help you get a green card. If u marry a new USC you will have to leave and file for new visa all over again.

The status change depends on the exact reasons why your wife wants to divorce. Again SUPPORTING EVIDENCE is the key word in this situation.

Good Luck

[jackcourtney 4]

do you guys know any good immigration lawyer who can answer my only question without charging me a $100 ?

I'm torn, some people said there is no way to adjust status after divorce and some others said it's possible as long as i have married to the petitioner!!

I'm willing to hire a lawyer but i at least i need to know that there is way , i don't wanna pay $100 for consultation and then realize that there's no way to adjust my status.... i'm not rich to be blowing my money like that

[jackcourtney 4]

Her reasons that we are different!!

[Karee 4,189]

The big question is was an I-485 filed for adjustment of status?

[Lornaevo 48]

You know what I think is funny about these posts? Your marriage is failing and the first thing you think about if immigration status. Shouldn't you be more concerned about trying to save your marriage if you really love your wife.

[jackcourtney 4]

The big question is was an I-485 filed for adjustment of status?

Yes it was filed and it is still pending, i have received EAD card though but no green card yet!

[LA NEGRA 19]

IT SEEMS TO ME LIKE YOU ARE ONLY CONCERN ABOUT YOUR ADJUSTMENT AND NOT ABOUT YOUR RELATIONSHIP... YOU EVEN ASK IF YOU SHOULD MARRY ANOTHER USC, IT CLEARLY SHOW THAT YOU DID NOT COME IN YOUR MARRRIEGE WITH GOOD FAITH AND THAT IS SAD!!I WOULN NOT ADVICE YOU ON HOW TO PLAY THE SISTEM.

[GodsGift225 54]

IT SEEMS TO ME LIKE YOU ARE ONLY CONCERN ABOUT YOUR ADJUSTMENT AND NOT ABOUT YOUR RELATIONSHIP... YOU EVEN ASK IF YOU SHOULD MARRY ANOTHER USC, IT CLEARLY SHOW THAT YOU DID NOT COME IN YOUR MARRRIEGE WITH GOOD FAITH AND THAT IS SAD!!I WOULN NOT ADVICE YOU ON HOW TO PLAY THE SISTEM.

:thumbs:

You know what I think is funny about these posts? Your marriage is failing and the first thing you think about if immigration status. Shouldn't you be more concerned about trying to save your marriage if you really love your wife.

:thumbs:

[Villanelle 4,121]

Theres a huge difference between an annulment and a divorce. If your marriage is annulled- there is NO WAY youd be able to adjust status. Annulling your marriage means it never happened. To get your marriage annulled (its different in each state) but typically the parties would have to swear that either the marriage was entered into under fraud (which therefore voids your claim of it being entered in good faith) the marriage was never consummated (again this goes against the claim needed of having a good faith marriage for immigration purposes) Or either party was under the influence of alcohol or drugs at the time.

So if your marriage is annulled its like it never happened. The records are gone. From what you posted above it does seem there is legal precedent for K1 visa holders who had submitted 485s and gotten DIVORCED before their GCs were approved to still obtain them.

You would definitely need to hire an attorney, and its going to cost you. Sadly if your wife if intent on moving forward with a divorce thats going to cost you as well. But when youre dealing with matters of divorce and immigration that are complicated, youre better off spending the money to have it done properly rather then risking trying to do it yourself.

[masipag 6]

Hello,

If you guys can't fix or go marriage counselling to save marriage then get divorce.I've heard these situation many times here in visa journey seems like all their concern is "how to stay"rather saving the marriage.anyway we don't know what's really the reason and its not our business.I think just get divorce and let the immigration make a decision if its possible to remain in us.as long as you have tons of evidence and that you enter in a good faith I don't think why not.the green card is not worth to sacrifice your life & happiness..ugh......

[Birdysboy 5]

I agree with the staying married people here. If the first thing you think about is how to stay here instead of how to save your marriage, then go back to your country. Anyone that comes onto a public forum and calls their wife crazy deserves it. Why do you want to tell a bunch of strangers your problems I don't know.

[Shiobhan 235]

Callous .... to come here and garner more ammunition to stay, your own words smack of a fraud marriage, U stated,she says the marriage was too quick I bet you begged, cajoled & forced it, all your concerns and research smack of immigration dishonesty,

You are trying to use a USC by any mans necessary. Hopefully they'll see thru you.