What to do after beneficiary divorces and remarrys a different applicant

[doves_love 0]

I'm new to the forums and this whole immigration process ... I appreciate the helpful advice and support that I've witnessed in other posts.

I have posted this in the K1 and AOS forums as I thought those would be the best places to get some advice. Apologies in advance for the dual post.

My girlfriend and I met back in late October and started dating at the end of November. It's been a highly emotional and passionate love affair ever since.

She originally came over on a K1 visa to marry her second cousin in March '05. To be honest, it was to be a paper only arrangement in order to gain a green card. They married within the initial required 90 day period in California, but resided in Washington state.

Helen was biometric scanned by USCIS, second week of October '05.

She was given an interview appointment towards permanent residency status (scheduled for December 9, 2005 at the Seattle Field Office), but did not attend due to the need to flee emotional and escalating physical abuse from her husband.

1 month post nuptial, she discovered that her husband has a severe drinking problem, is a drug user and is verbally and emotionally abusive.

The abuse started to escalate to physical threats and acts on herself and the husband's mother who lived with them.

The mother-in-law has taken out a restraining order that I am trying to get a certified copy of from the Clark County, WA. Clerk's Office.

Helen fled to relatives in Florida in late October (just in time for the hurricane). She called the 800 number and told the customer service person that her husband was sick and she could not appear at the December interview. The rep said to write a letter of explanation. Helen did not write the letter nor appear at this interview.

Jump ahead ... we meet through mutual relatives, start dating, fall in love and we'd like to start our own process.

I'm looking for some confirmation and some "go forward" advice on processes from the forum. We've consulted several lawyers and basically, it comes down to the following scenario as I see it.

Get her divorced, paper her existing file with a certified letter explaining what happened, file any other supporting documents (like the current restraining order and copy of upcoming divorce judgment), we get married and start our own process.

At first, we concerned ourselves with the 180 day "out of status" calculations and tried to conservatively estimate when she would have to leave in order to not trigger a 3 or 10 year bar. Our thought was that she'd leave and we'd start a new K1 or maybe a K3 or IR1/CR1 process.

We've since abandoned that line of thinking as our consultations have led us to find out that there is no consistent guide or application of the 180 day calculation, and since ultimately, it should all be forgiven when we marry and file for AOS on our own, we won't endanger her by having her leave.

Can she continue the process on her own? What about filing I-751 on her own? I think we will have trouble establishing that the marriage was genuine as there was no mingling of bank accounts or property, etc.

Also, the husband and mother in law are not helpful and in fact are antagonistic and now blame my girlfriend for the husband's emotional and addictive problems. Their theory is that he "fell in love with her" and was driven to emotional distress when she did not reciprocate feelings.

Is there a helpful step-by-step guide on forms or processes we should be following? What should we be preparing? My assumption is that we start a IR1/CR1 process or start the AOS process after we get married.

I appreciate any and all advice anyone can give us in this matter. Also any tips of words of support form others who have gone through a similar scenario.

Thanks! Jon & Helen

[doves_love 0]

Thanks for all the feedback on this and other forums ... let me try and clarify based on some of that feedback.

She came in good faith to marry the USC, though it was certainly not based on the thought of a long term marriage. Both parties were aware and this was not a scam of the USC. She was initial treated very well. In fact the marriage was consummated based on the initial time together. That all soon changed dramatically.

While I agree that the original process and petitions would probably have been denied, not the least of which is the fact they are second cousins, we are operating now under the assumption that the lack of attending the interview in December has triggered a process that USCIS will deny the application and probably close the case.

The I-485 app was the only additional paperwork that was submitted ... no application for SSN or a work permit.

We met with 3 lawyers.

The first said try to work it out with the USC (ostensibly, continue the fraud) or try VAWA, though evidence is thin of actual abuse -- he made an interesting point that those trying to perpetrate fraud or whom have no resources to leave are unfortunate enough to have plenty of evidence of abuse. Those who are able to leave under threat of actual abuse, often don't have evidence to back it up. Just anecdotal reports.

Luckily, she left before physical violence occurred. She had had enough of the emotional violence and physical threats and throwing things and the drinking and the drugging and the disappearing for days at a time. The mother-in-law took out a restraining order that I am getting a copy of to back our filings to USCIS.

The second lawyer brought up trying to calculate the 180 days and exit the country to keep from incurring the 3-10 yr. bar, and then starting another K1 or K3/IR1/CR1 process. As I said in my previous post, we've given up that course of action as we felt that we have either already overstayed past 180 days (or soon will) and we do not plan on having her leave the country in order to try and be a "test case" for interpreting the rules.

The 3rd lawyer who does primarily corporate immigration law (friend of a friend) suggested a "realistic approach". I had asked him how we could "work the system" in order to keep her here as long as possible, clean up / close her current application as easily as possible, get her a divorce and remarry her as quickly as possible, begin our own permanent status process as soon as possible -- all with keeping our separation down to the smallest time possible.

He said get a divorce and "paper" her current file with a certified letter and anything that would help support future process on why the original process was abandoned.

He advised that the overstay bar would only be triggered if she left the country. So keep her here, get married on our time line and then begin our process.

My confusion is, what process do we start after we get married? What forms do we file?

We've joked ironically with each other that we wished we'd met earlier so she never had to go through what she did ... that the process would be more legit and less hardship. We love each other very much and our mutual extended family is ecstatic that we found each other through all of this.

This is a start of a beautiful relationship that is marred by a legal entanglement that we'd like to make right ... even if it stretches the interpretation of the original intent of the immigration process. Ostensibly she will be here out of status for a bit, we will get her divorced (a process that is underway), get married ourselves and then proceed with a change of residency and AOS.

I appreciate any concrete assistance and guidance as to forms and processes you may be able to offer.

Jon & Aghavni (which means 'Dove' in Armenian)

[kygeographer 0]

This one sounds like a special case.. I'd look into getting an immigration attorney to help you out. Best of luck!

[desert_fox 32]

You should read the instructions that come with the I-485 that is used to adjust status.

You will find that anyone who enters the US on a K1 can only adjust status based upon marriage to the original petitioner.

I dont think that you hae a chance of changing status based on marriage to another person. She would have to leae the country and start the process all over. My opinion but Im not a lawyer.

[Rina777 0]

We have the same story. And we just had a baby together. I gut divorced in August 10, remarried on August 23 and we refiled on November. Case was denied and they give me 6m to live the Country.If you K1 or K3 You only can adjust throw original petitioner UNCONSTITUTIONAL !!!! :-(((( This is the law. LIFE act And also you have to live the country 30 days later after your divorse is final, otherwise unlawfull presense and if you stay more then 6m you unadmissable for 3y. more then a year - FOR 10 YEARS!!!!! Now trying to figer out what to do. When unlawfull presence starts exactly??? How it is calculated?? Does it get terminated when petition filed on your behalf until desision is final ????? Do they add all the days you was unlawfully present or it starts all over again after other petition on your behalf denied????????Seeing the lawyer second time on Tuesday. If someone had the same situation HELP with advise!!!!!! I can not picture myself and my 6m old son without my husband ABROAD waiting for immigration visa in the best case and beeing unadmissiable for 3y - in the WORST....unless he wants to move with me....I know there are some waivers if you stayed illigally, but the prossesing dates for them veeeery long....I know there is someone out there been throw this before, PLEASE RESPOND!!!!

[Jasman0717 8]

If the beneficiary is not married to the original petitioner then I believe you have to start all over again meaning the beneficiary would have to return to their country or origion and start the petition new. I know you can't come here and marry someone else!

[dmartmar 1]

She came in good faith to marry the USC, though it was certainly not based on the thought of a long term marriage. Both parties were aware and this was not a scam of the USC.

Then the marriage wasn't "in good faith" and both parties knowing this makes them equally scammers.

[pax 0]

I don't know that I would go about openly posting fraudulent circumstances on an Internet message board, that's for sure!

Anyway, the beneficiary of a K-1 can only adjust status via marriage to the original petitioner. If violence was involved, she may qualify for VAWA relief with the I-360, but just with that alone, I would get a lawyer on the case. The fraudulent marriage + violence + new relationship=total paperwork disaster at the very least.

Good luck.

[Satisfaction 1]

She was given an interview appointment towards permanent residency status (scheduled for December 9, 2005 at the Seattle Field Office), but did not attend due to the need to flee emotional and escalating physical abuse from her husband.

Not the smartest thing to do. Why didn't she write a letter when she was advised to, or at that point hire an attorney to represent her at the time of the interview? The fact that her husband was abusive is certainly bad enough (although not documented?), but I am not convinced that it could be used as a reason for not showing up at an interview. The now separated husband would probably not even have bothered showing up there after the whole drama. And even if he did, there is heavy security in all USCIS offices.... Not the best place to punch someone in the face, really. ... Since the immigration services are now part of DHS, the guy could even get arrested and locked up on the spot.

I wouldn't know what to advise, except to consult an immigration attorney and explain your situation.

[john_and_marlene 162]

The OP indicated that the marriage was for immigration only. She does not qualify for VAWA regardless of any violence. VAWA requires the marriage to be valid and this marriage was a fraud to bypass immigration requirements.

[pax 0]

Mmmmm, yeah, forgot about that.

At any rate, if you have any hope of getting your sweetie back into the country, you'll probably need a lawyer on the case anyway.

[diadromous mermaid 36]

I'm new to the forums and this whole immigration process ... I appreciate the helpful advice and support that I've witnessed in other posts.

I have posted this in the K1 and AOS forums as I thought those would be the best places to get some advice. Apologies in advance for the dual post.

My girlfriend and I met back in late October and started dating at the end of November. It's been a highly emotional and passionate love affair ever since.

She originally came over on a K1 visa to marry her second cousin in March '05. To be honest, it was to be a paper only arrangement in order to gain a green card. They married within the initial required 90 day period in California, but resided in Washington state.

Helen was biometric scanned by USCIS, second week of October '05.

She was given an interview appointment towards permanent residency status (scheduled for December 9, 2005 at the Seattle Field Office), but did not attend due to the need to flee emotional and escalating physical abuse from her husband.

1 month post nuptial, she discovered that her husband has a severe drinking problem, is a drug user and is verbally and emotionally abusive.

The abuse started to escalate to physical threats and acts on herself and the husband's mother who lived with them.

The mother-in-law has taken out a restraining order that I am trying to get a certified copy of from the Clark County, WA. Clerk's Office.

Helen fled to relatives in Florida in late October (just in time for the hurricane). She called the 800 number and told the customer service person that her husband was sick and she could not appear at the December interview. The rep said to write a letter of explanation. Helen did not write the letter nor appear at this interview.

Jump ahead ... we meet through mutual relatives, start dating, fall in love and we'd like to start our own process.

I'm looking for some confirmation and some "go forward" advice on processes from the forum. We've consulted several lawyers and basically, it comes down to the following scenario as I see it.

Get her divorced, paper her existing file with a certified letter explaining what happened, file any other supporting documents (like the current restraining order and copy of upcoming divorce judgment), we get married and start our own process.

At first, we concerned ourselves with the 180 day "out of status" calculations and tried to conservatively estimate when she would have to leave in order to not trigger a 3 or 10 year bar. Our thought was that she'd leave and we'd start a new K1 or maybe a K3 or IR1/CR1 process.

We've since abandoned that line of thinking as our consultations have led us to find out that there is no consistent guide or application of the 180 day calculation, and since ultimately, it should all be forgiven when we marry and file for AOS on our own, we won't endanger her by having her leave.

Can she continue the process on her own? What about filing I-751 on her own? I think we will have trouble establishing that the marriage was genuine as there was no mingling of bank accounts or property, etc.

Also, the husband and mother in law are not helpful and in fact are antagonistic and now blame my girlfriend for the husband's emotional and addictive problems. Their theory is that he "fell in love with her" and was driven to emotional distress when she did not reciprocate feelings.

Is there a helpful step-by-step guide on forms or processes we should be following? What should we be preparing? My assumption is that we start a IR1/CR1 process or start the AOS process after we get married.

I appreciate any and all advice anyone can give us in this matter. Also any tips of words of support form others who have gone through a similar scenario.

Thanks! Jon & Helen

Sorry to hear of your dilemma, but you do have a significant legal battle ahead, and one which might not be successful at that, if you wish to adjust here in the USA. There was a small loophole that you might have heard from one of your consultations known as the Dixson & Dawson cases, all pre-IMFA revision of the INA. As far as I remember reading somewhere, there are no cases or precendents after the IMFA was enacted, but essentially, if I recall correctly these cases argued that the K-1 visa requirement calls for a marriage within 90 days and then the visa is satisfied. The consequent adjustment in the Dawson and Dixson arguments was not tied to the K-1 any more since the K-1 had been satisfied. I can't say where the legal position is on this, but even if there is a chance it would be a long and uphill battle to forge new territory.

On the potential fraud issue with the first marriage, was there a paper trail that could be uncovered to conflate the matter, such as an agreement, letters or an exchange of money?