Complicated History - Lawyer needed? Opinions Please

[Andrew194 0]

I am a US citizen that recently married an immigrant from Russia that is here in the USA.  I am new to this process and have started to prepare the standard set of documents, (I-130, I-130A, I-485 and a few others)

 

She thinks that we need to a use a lawyer to make sure everything is done right.  I looked over the forms, and it seems very straight forward to me.  Some other people have told me that a lawyer is not needed.

 

But, she has a complicated history with USCIS.

She and her son were brought into the country as K1 visa, fiancee to her previous husband a little over 5 years ago.  That marriage then resulted in a nasty divorce.  With letters being sent to USCIS  accusing her of immigration fraud.   This resulted in the cancellation of a I-485 that was in process several years ago.  After her divorce she self petitioned under VAWA using a lawyer, which is still in process right now.  That I-485 was submitted about 18 months ago.  (which seems a long time to be in process?)  She has maintained legal status through all of this with work authorizations.  Her lawyer told her that her current petition is invalid now and she needs to refile everything.  There have been a few things that make me not trust her lawyer, in addition to my pre-existing distrust for lawyers in general.  I know, or understand that with this history we will be under a microscope for proof of a bonafide marriage relationship.  We are being diligent to keep a history together.  At one point I was about to call the USCIS to ask about what to do in this situation.  She begged me not to talk to USCIS as she is really afraid of something going wrong and being told to leave the country. 

 

So I have been thinking, maybe we should use a lawyer?  I know there is no right answer. Just looking for some other peoples opinions or thoughts on the situation? 

 

Thanks  - 

 

[Ryan H 3,790]

Moved from IR-1/CR-1 Process & Procedures to Adjustment of Status from Work, Student, & Tourist Visas forum.

[geowrian 22,335]

30 minutes ago, Andrew194 said:

Her lawyer told her that her current petition is invalid now and she needs to refile everything.

Why is her I-360 invalid now? Was it denied?

 

The challenge here will be showing a bona fide marriage. If the previous marriage was determined not to be bona fide, that will create a decent hurdle for any new marriage.

If the issue was inability to show abuse, then I think there is less so of an hurdle IMO.

[bakphx1 785]

I’m confused.  Why would she need a new I130 if she’s going to get a 10 year green card under her self-petition under VAWA? How is she under an employment visa if she got, presumably a CR1 after adjusting her K1?   How long was she married?  In 5 years she should have had her 10 year card already with her self petition.

 

There’s something in her story that doesn’t add up.  Personally I think she’s withholding information from you.  

 

If she has an employer based visa she would adjust status, not file a new I130.

 

 

Edited September 7, 2019 by bakphx1

[geowrian 22,335]

4 minutes ago, bakphx1 said:

I’m confused.  Why would she need a new I130 if she’s going to get a 10 year green card under her self-petition under VAWA? How is she under an employment visa if she got, presumably a CR1 after adjusting her K1? 

 

There’s something in her story that doesn’t add up.  Personally I think she’s withholding information from you.  

Maybe I misread it, but it sounds like the I-360 (+ new I-485 presumably) was her basis for an EAD (no employment visa was mentioned).

Successful AOS would have resulted in CR-6. And no need for any petitioning, which doesn't seem to actually be the case here.

Edited September 7, 2019 by geowrian

[geowrian 22,335]

Wait a sec....she came on a K-1 originally? Ouch...you can't file an I-485 for her. That's simply not in the cards...she can only AOS via the original petitioner OR via the I-360. She cannot AOS via a new spouse.

 

The process would be to file the I-130 then do consular processing abroad for a CR-1 visa.

That said, if she has 180+ days of unlawful presence, an I-601A (after I-130 approval) would be necessary to waive the bar for unlawful presence.

 

Edit: Technically, Matter of Sesay lets her AOS via a new spouse so long as thew original petitioner provides an I-864 still....although it is very difficult and likely not in the cards here given that he was her abuser so he has no reason to provide an I-864 now.

Edited September 7, 2019 by geowrian

[bakphx1 785]

10 minutes ago, geowrian said:

Maybe I misread it, but it sounds like the I-360 (+ new I-485 presumably) was her basis for an EAD (no employment visa was mentioned).

Successful AOS would have resulted in CR-6. And no need for any petitioning, which doesn't seem to actually be the case here.

Ah, you are correct.  I mistakenly assumed a VAWA was still ROC but without the petitioner.  I didn’t realize it was a separate visa.  I shouldn’t have commented on that as I haven’t done my reading on VAWA.

 

But we circle back to a new I130 for an original K1 arrival with a different petitioner.

 

The simple answer we agree on is it’s not a straight forward I130 filing.

Edited September 7, 2019 by bakphx1

[HRQX 4,145]

1 hour ago, Andrew194 said:

After her divorce she self petitioned under VAWA using a lawyer, which is still in process right now.  That I-485 was submitted about 18 months ago.  (which seems a long time to be in process?)

Was the I-360 still pending when she remarried? If yes, then the I-360 couldn't be approved: https://www.uscis.gov/system/files_force/files/form/i-360instr.pdf Page 6

[Ryan H 3,790]

***Hijack post removed; if you have your own question, you need to start your own thread.***

[dieyna 0]

sorry i am new and dont know how it really works sorry again Ryan

[belinda63 2,981]

Not a simple case as she came on a K-1 she cannot simply adjust status through you, she must adjust through the original petitioner. I believe the attorney is correct in the I-130 is now invalid due to her marriage.

She will need to return home and do consular processing.

On a side note, it sounds like she is desperate to stay in the US no matter what. This will be an issue.

[Pinkrlion 2,607]

9 hours ago, geowrian said:

Why is her I-360 invalid now? Was it denied?

 

The challenge here will be showing a bona fide marriage. If the previous marriage was determined not to be bona fide, that will create a decent hurdle for any new marriage.

If the issue was inability to show abuse, then I think there is less so of an hurdle IMO.

When you remarry with a pending I-360, you are no longer eligible for VAWA. Lawyer is correct, you will have to refile everything. 

[Pinkrlion 2,607]

9 hours ago, geowrian said:

Wait a sec....she came on a K-1 originally? Ouch...you can't file an I-485 for her. That's simply not in the cards...she can only AOS via the original petitioner OR via the I-360. She cannot AOS via a new spouse.

 

The process would be to file the I-130 then do consular processing abroad for a CR-1 visa.

That said, if she has 180+ days of unlawful presence, an I-601A (after I-130 approval) would be necessary to waive the bar for unlawful presence.

 

Edit: Technically, Matter of Sesay lets her AOS via a new spouse so long as thew original petitioner provides an I-864 still....although it is very difficult and likely not in the cards here given that he was her abuser so he has no reason to provide an I-864 now.

She married and divorced her K-1 petitioner. You can file VAWA being divorced but cannot remarry. I am not sure what happens after that occurs can you AOS with new spouse. 

[geowrian 22,335]

2 hours ago, Pinkrlion said:

She married and divorced her K-1 petitioner. You can file VAWA being divorced but cannot remarry. I am not sure what happens after that occurs can you AOS with new spouse. 

Right. Looks like there are a few issues here:

1) Remarrying invalidated the existing I-360.

2) Cannot AOS via another spouse due to entering on a K class visa.

Edited September 7, 2019 by geowrian

[Boiler 43,426]

Sounds like there is a lot you have not been told and may well have an impact on this case.