Still 245-i eligible (marriage/divorce & now child over 21 petitioning)

[Bengalita 12]

Hi everyone.  Ok, long story. 

A LPR mother petitioned her 25 year old unmarried daughter in 1997.  Then the daughter got married in 1999.  Then got divorced in 2007.   During the marriage/divorce process, the F2b petition was never worked on because the visa bulletin dates were not current with the petition.  

LPR mother became US Citizen in 2009. 

 

Now divorced daughter would like to adjust status through her 22 year old US Citizen daughter.   She would like to use the 245-i benefit from her mother's F2b petition from 1997 so she can adjust status here in the USA.   Her attorney told her that because she got married (even though she got divorced) it automatically revokes the F2b petition from 1997.   Her attorney recommended that her 22 year old daughter petition her but via I-601, using the US Citizen mother as a qualifying relative. 

 

Personally. I don’t agree with the attorney’s advice. First of all, her marriage/divorce process took place before the F2B petition became visa-eligible.  So her divorce nullifies her marriage.   Second, her F2B petition was approved as an unmarried daughter.  They never brought it to fruition because she got married.  But then she got divorced.  And even still, that F2B petition was never carried out. Third, she does not desire to adjust status through her mom’s F2B petition, she now desires to adjust through her daughter, using her mother’s 245-I benefit. 

 

I personally think the attorney wants her to go via I-601 with USC mother as qualifying relative, because the attorney can make more money that way.  I welcome your thoughts.

[Ontarkie 13,915]

~~Moved to AOS from Work, Student & Tourist Visas, from AOS FAmily - The person in question did not come on a K1 visa~~

THe lawyer is right. Once the daughter married she voided the petition. It does not matter that she later divorced. 

[aleful 1,905]

hi

 

exactly, she isn't covered under the 245i, she voided that petition when she married, divorce doesn't nullify anything, the category states that she must remain unmarried to become a resident. there was a marriage certificate, the day she married, the petition was voided, residents can't petition married children., she must remain unmarried at all times.

 

the approval of the i130 is based on relationship, later on she would have been denied because she married during the waiting period, plus immigration was never notified that she married,  if they would have, the petition would have been denied, since residents can't file for married children

 

so in this case, the lawyer is correct

 

she will need to file a waiver because she has a 10 year ban, since her daughter doesn't qualify for the hardship letter, she can use her mom as her qualifying relative