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 a few forums I thought would be the best places to get some advice. Apologies in advance for the multiple posts.

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

[scy 0]

I was going to reply but I don't think it will help you. These questions can only be answered by competent immigration lawyers. You consulted them and that's good because you're going to need a lot of help.

From what I've read, it is very difficult for a K-1 beneficiary to adjust status through marriage with someone other than the original K-1 petitioner. The overstay isn't an issue. It's the fact that your girlfriend "married for immigration purposes." Your girlfriend can claim VAWA, but the original issue of "paper only arrangement in order to gain a green card" will need to be solved first before she can claim VAWA. In others words, if her original marriage was a sham to gain legal permanent status, then everything else that happened afterwards might not count. I'm not a lawyer. You should consult many lawyers.

Good luck.

Edited March 3, 2006 by scy

[almaty 19]

i agree..an attorney versed in immigration law is needed,,,

[Mand 1]

Definately an attorney specializing in immigration laws. There are too many issues here not to obtain counsel.

[hcj 0]

You didn't give a timeline so hard to calculate what "overstay" she may have. Can you explain why you think overstay doesn't matter and it's safe for her to leave the US. It's true that in most cases, overstay is forgiven when married to a USC, but that's only if the immigrant does not leave the US. If they do leave the US, they are subject to the applicable bar (3 years for 180+ days, 10 years for 365+ days). Marriage to a USC does not solve that situation, you would have to file a hardship waiver (and get it granted) to overcome the bar.

I don't think she can continue her current AOS process without her husband's cooperation, unless she invokes VAWA. There is no I-751 to file unless she already has her conditional green card, but from what you posted it seems she never got to that point.

If you're going to try to AOS based on your marriage, strongly suggest you have an experienced immigration attorney handle the filing. The rules are pretty explicit that a K-1 can only adjust based on marriage to the original petitioner, not any other USC. I have a feeling there's a way around it IF you have an excellent attorney. I have a feeling USCIS will just flat out deny you if you do it yourself and do not have representation. But that's just IMHO.

If you're going to do another K-1 or a CR-1/K-3, then I think you should be concerned about any overstay she may have accrued/may be accruing. As mentioned above, overstay is generally forgiven if the immigrant is still in the US, but once they leave the US (which she would have to do to get her visa) the bar will be triggered and it will take a successful hardship waiver to overcome.

[john_and_marlene 162]

If you've talked to several lawyers, why are you looking here for a course of action? Did they all tell you that she can't adjust status when the original entry was fraudulent? Did they recommend that she return home and start again?

What were you told by the lawyers? Did they say they can't help you?

[zyggy 9]

If you've talked to several lawyers, why are you looking here for a course of action? Did they all tell you that she can't adjust status when the original entry was fraudulent? Did they recommend that she return home and start again?

What were you told by the lawyers? Did they say they can't help you?

If there was abuse and it was documented, then the alien can petition for adjustment through VAWA by filing an I-360. Any competent immigration attorney should be able to guide you in how to do this.

One thing is certain, the alien will not be able to file another I-485 based on marriage to another USC as adjustment can only be accomplished through marriage to the original petitioner.

[scy 0]

If you've talked to several lawyers, why are you looking here for a course of action? Did they all tell you that she can't adjust status when the original entry was fraudulent? Did they recommend that she return home and start again?

What were you told by the lawyers? Did they say they can't help you?

If there was abuse and it was documented, then the alien can petition for adjustment through VAWA by filing an I-360. Any competent immigration attorney should be able to guide you in how to do this.

One thing is certain, the alien will not be able to file another I-485 based on marriage to another USC as adjustment can only be accomplished through marriage to the original petitioner.

What if the alien entered into the marriage illegally to obtain a visa? Will VAWA apply?

Edited March 3, 2006 by scy

[Mand 1]

I postd this on one of this person's other threads, as am curious about the answer...

Just asking, because I don't know much about this stuff (Thank God) but is the husband's point of view taken into account for the I-360 form you mentioned? Just that the poster stated the following:

it was to be a paper only arrangement in order to gain a green card.

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.

Just curious if both sides of the story are taken into account for the form mentioned?...

Zyggy just answered in the other one...Thanks!

[zyggy 9]

If you've talked to several lawyers, why are you looking here for a course of action? Did they all tell you that she can't adjust status when the original entry was fraudulent? Did they recommend that she return home and start again?

What were you told by the lawyers? Did they say they can't help you?

If there was abuse and it was documented, then the alien can petition for adjustment through VAWA by filing an I-360. Any competent immigration attorney should be able to guide you in how to do this.

One thing is certain, the alien will not be able to file another I-485 based on marriage to another USC as adjustment can only be accomplished through marriage to the original petitioner.

What if the alien entered into the marriage illegally to obtain a visa? Will VAWA apply?

I was asking the question based on what could be done.. not on the intent of gaining the original visa... However, the circumstances don't change.. if the USCIS determines that the marriage was made for the intention of circumventing immigration laws, filing an I-360 would not change things... if obtaining the original visa and the original entry were based on fraudulent means... adjustment whether based on the I-360 or the I-485 will be denied.

Edited March 3, 2006 by zyggy

[john_and_marlene 162]

If you've talked to several lawyers, why are you looking here for a course of action? Did they all tell you that she can't adjust status when the original entry was fraudulent? Did they recommend that she return home and start again?

What were you told by the lawyers? Did they say they can't help you?

If there was abuse and it was documented, then the alien can petition for adjustment through VAWA by filing an I-360. Any competent immigration attorney should be able to guide you in how to do this.

One thing is certain, the alien will not be able to file another I-485 based on marriage to another USC as adjustment can only be accomplished through marriage to the original petitioner.

Sec. 204.2 Petitions for relatives, widows and widowers, and abused spouses and children.

©Self-petition by spouse of abusive citizen or lawful permanent resident.

(1)Eligibility.

(ix)Good faith marriage. A spousal self-petition cannot be approved if the self-petitioner entered into the marriage to the abuser for the primary purpose of circumventing the immigration laws. A self-petition will not be denied, however, solely because the spouses are not living together and the marriage is no longer viable.

http://uscis.gov/lpBin/lpext.dll/inserts/s...slb-8cfrsec2042

[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)

[zyggy 9]

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)

Unfortunately there is no easy way to go about this...

She cannot just marry you and have you file the I-485 as she can only sucessfully adjust based on marriage to the original petitioner.

You have a choice...

She can try the I-360 and see what happens and stay or

She can go home and you can file a I-129F to get her to come to the US as your fiancee. However, if she stays past the 180 days, you'll have to apply for a waiver for her to come..

So lawyer 1 and lawyer 2 were both right, lawyer 3 was way off... they can't tell you what to do and neither can we... but those are your choices...

Best of luck with your decision.

Go back to your attorney (1 or 2) and bring all of your evidence and have a real long talk about the chances of success with the I-360. If through your conversation, you aren't confortable with the odds of approval, you'll need to go to the second option.

Edited March 3, 2006 by zyggy

[john_and_marlene 162]

To be honest, it was to be a paper only arrangement in order to gain a green card.

She came in good faith to marry the USC, though it was certainly not based on the thought of a long term marriage.

these two contradict. If it was arranged for the purposes of getting a green card then it was not a good faith marriage as she "entered into the marriage to the abuser for the primary purpose of circumventing the immigration laws"

I can see why the first two lawyers said what they did and I think you should listen to them. I think you will not find a legal solution that works if she stays here and delaying her exit may be digging a deeper hole.

Edited March 3, 2006 by john_and_marlene

[Yodrak 7]

Jon & Aghavni,

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. ...

Certainly fits the definition of one.

We met with 3 lawyers.

The first said try to work it out with the USC (ostensibly, continue the fraud) ...

Sounds like this one also think it fits the definition.

In any event, select the attorney who you feel most comfortable with and follow their advice. If you don't feel comfortable with any of the 3 you've met with thus far, meet with a fourth.

Yodrak

Edited March 3, 2006 by Yodrak