Mother of American Children with expired immigration

[snowcrash 1]

This question involves a couple that was married for ~8 years. Husband is a naturalized citizen and the (ex)wife got immigration through marriage to him. They had two kids in the second and fourth year of the marriage born in the US. About four years into the marriage things started getting turbulent. I'll spare you the dirty laundry, but the relevant point is that the wife moved back to her country for a "break". She stayed over six months causing the citizenship clock on her green card to reset. She came back to the US and upon learning of the reset decided to move back to her country while leaving the children with their father in the US. She let, for whatever stupid reason, her green card lose status by staying there for over a year.

Now the situation is that her husband divorced her and is living with the kids in the US. She realizes her follies and want to get back with him, which he is not willing to do. However, he has no issue with her having a relationship with her children and be in their life in some way. He doesn't want to re-marry her and go through the fiance visa, or wife visa etc. route. Is there another way for her to visit her kids? Can he for example sponsor her for a visit visa to visit her children? Does that increase the chances of it being approved? or is there another class of visa she can apply for to maintain a visiting relationship with her children?

Edited July 10, 2013 by snowcrash

[Darnell 8,478]

you not mention which country she holds a passport from.

Without any immigrant visa involvement, she'll need to obtain a Tourist Visa on her own merits. If she's from a Visa-Waiver-Program country, she should check her status of ESTA immediately, online.

tempus fugit, one of the children turns 21, and can then apply for a petition for his/her mother, leading to an IR-5 visa.

[Janelle2002 3,865]

Sure visitor's visa. But the burden is on her to show that she has strong enough ties in her country to want to return back to her country and is not intending to stay in the U.S. once she comes to the U.S. And having kids of a small age in the U.S. looks like all of her ties are here in the U.S. not in her home country unless she can convince them that she hasn't seen them for years thus showing she has no intention of staying the U.S.

Good Luck!

[Boiler 43,564]

B2 Visitor Visa.

[snowcrash 1]

Sure visitor's visa. But the burden is on her to show that she has strong enough ties in her country to want to return back to her country and is not intending to stay in the U.S. once she comes to the U.S. And having kids of a small age in the U.S. looks like all of her ties are here in the U.S. not in her home country unless she can convince them that she hasn't seen them for years thus showing she has no intention of staying the U.S.

Good Luck!

So the fact that her young children are in the US is not a positive on the "humanitarian" grounds. It is in fact a negative for a visa because of the implied ties to the US?

On another note, had the husband not yet officially filed for the divorce, what would be a good way to get her to visit? Is it fiance visa or re-petition for immigration? And once she enters on one of these options, does a subsequent divorce filing invalidate her status in any way?

[aaron2020 11,651]

Her ex-husband cannot sponsor her for anything.

Having US citizen children gets her no benefits either. They have to be 21 years old to petition for her.

Her only option is a visitor visa. With children in the US, her chances are pretty slum if she is from a developing country.

Her children can always visit her even if she can't visit the US.

------

Please be accurate with your information. Wrong info equals wrong answer.

First, her ex will not re-marry her. Then, they haven't even file for divorce yet. Two completely different situations.

Edited July 10, 2013 by aaron2020

[Boiler 43,564]

What is her nationality?

[aaron2020 11,651]

So the fact that her young children are in the US is not a positive on the "humanitarian" grounds. It is in fact a negative for a visa because of the implied ties to the US?

On another note, had the husband not yet officially filed for the divorce, what would be a good way to get her to visit? Is it fiance visa or re-petition for immigration? And once she enters on one of these options, does a subsequent divorce filing invalidate her status in any way?

What humanitarian grounds? Her children can visit her. There is no humanitarian issue here.

The children makes it more likely that she would stay illegally in the US, so it's a big negative.

Her husband would need to petition her and show a bona fide relationship. With a pending divorce, how would she present a bona fide relationship? Automatic fail - "Yes, we have a real relationship. My husband will bring me to the US as his wife and we will immediately file for divorce as soon as I get my green card."

[Janelle2002 3,865]

So the fact that her young children are in the US is not a positive on the "humanitarian" grounds. It is in fact a negative for a visa because of the implied ties to the US?

On another note, had the husband not yet officially filed for the divorce, what would be a good way to get her to visit? Is it fiance visa or re-petition for immigration? And once she enters on one of these options, does a subsequent divorce filing invalidate her status in any way?

Petitioning her as a fiancé is fraud if they do not plan to marry. If she enters on a fiancé visa they will have to marry within a certain time frame. He can get in big trouble for committing immigrations fraud.

Yes, her having children here in the U.S. gives her greater ties to the U.S. not to her home country unless she has children their also.

[Darnell 8,478]

oh, that's right - we are completely ignoring the fact that if she marries to another USCitizen, that newly minted husband could file an I-130 on her, leading to a CR-1 visa and 2 year green card.

[Janelle2002 3,865]

oh, that's right - we are completely ignoring the fact that if she marries to another USCitizen, that newly minted husband could file an I-130 on her, leading to a CR-1 visa and 2 year green card.

That's true and she can do it, but I would not suggest for her to do it just for immigrations purposes. If she does do this, she will leave that guy as soon as she gets into the country.

Now if this was because she really loves this guy, then this would be completely different. Again this will be a hard case to prove being that she already has kids in the U.S. and is divorcing or would have just divorced by the time she marries and files new petition.

[aaron2020 11,651]

Your friend's best chance of living in the US with her children is to try to return with the current green card. The card is still good until an immigration judge decides otherwise. There is no such thing as automatic loss of LPR status.

If she has problems entering after being out more than a year, CBP will still let her in and refer her to an Immigration judge. There she can fight to keep her LPR status.

If she is allowed in with no problem, then her problem goes away. She goes back to living with her children.

Edited July 10, 2013 by aaron2020

[snowcrash 1]

What humanitarian grounds? Her children can visit her. There is no humanitarian issue here.

The children makes it more likely that she would stay illegally in the US, so it's a big negative.

Her husband would need to petition her and show a bona fide relationship. With a pending divorce, how would she present a bona fide relationship? Automatic fail - "Yes, we have a real relationship. My husband will bring me to the US as his wife and we will immediately file for divorce as soon as I get my green card."

The assumption was that the divorce is not officially filed or in the process in anyway. In many of these countries due to their religious/cultural practices they consider a verbal divorce to be a divorce in the eyes of God. However, in the west (i.e., US) without legal filing and paperwork a divorce is not a divorce in the eyes of the law. SO without the legal filing and paperwork, it just looks like an extended leave or separation. In that case, can he re-petition for her? and in which way?

BTW, The country is Bangladesh.

Edited July 10, 2013 by snowcrash

[Darnell 8,478]

aaron, I suppose that path is possible, but the 'over a year' could be interpreted as 'three years' as well.

[Janelle2002 3,865]

The assumption was that the divorce is not officially filed or in the process in anyway. In many of these countries due to their religious/cultural practices they consider a verbal divorce to be a divorce in the eyes of God. However, in the west (i.e., US) without legal filing and paperwork a divorce is not a divorce in the eyes of the law. SO without the legal filing a paperwork, it just looks like an extended leave or separation. In that case, can he re-petition for her? and in which way?

BTW, The country is Bangladesh.

she needs to go to the Embassy and see what they say first. I am sure there is a way she can reactivate her green card. She should try this route first.