Complicated History - Lawyer needed? Opinions Please

[Pinkrlion 2,607]

13 hours ago, Andrew194 said:

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  - 

 

When you remarry with a pending I-360, you are no longer eligible for VAWA.  Her I-360, I-765, I-131, and I-485 (VAWA based) will be denied.  Lawyer is correct, you will have to refile everything.

Edited September 7, 2019 by Pinkrlion

[geowrian 22,335]

3 minutes ago, Pinkrlion said:

Lawyer is correct, you will have to refile everything.

Refile based on what, though?

[HRQX 4,145]

13 hours ago, Andrew194 said:

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.

Consular processing is the viable path. How old is the child? If the child is under 18 then he isn't subject to a time bar right now if he leaves the US. For your wife, you first have to see if she is subject to a time bar when she departs the US: https://www.americanimmigrationcouncil.org/research/three-and-ten-year-bars Tally up all the periods of unlawful presence; https://fam.state.gov/FAM/09FAM/09FAM030211.html:

Quote

DHS has interpreted "period of stay authorized by the Secretary of Homeland Security," as used in this context, to include:

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(5) For aliens who have properly filed an application for adjustment of status to that of a lawful permanent resident (LPR), the entire period of the pendency of the application, even if the application is subsequently denied or abandoned, provided the alien (unless seeking to adjust status under NACARA or HRIFA) did not file for adjustment "defensively" (i.e., after deportation proceedings had already been initiated);

If she is subject to a time bar, then you can go the waiver route; either provisional waiver before departing the US or I-601 after visa denial. For provisional waiver submit I-601A and supporting documentation after your I-130 petition is approved: https://www.uscis.gov/i-601a

Edited September 7, 2019 by HRQX

[Hypnos 6,576]

I concur with most of those above. 

 

She isn't eligible for VAWA benefits anymore due to her marriage to you, and she cannot AoS through you because she entered on a K-1.

 

An I-130 seeking an immigrant visa, coupled with an I-601A (if necessary) would seem to be the way to go. 

[Pinkrlion 2,607]

1 hour ago, geowrian said:

Refile based on what, though?

I meant the I-130

[Andrew194 0]

Sorry guys, I am new to all the acronyms flying around, I am still getting my bearings with this stuff.  

 

My error, she entered US under the C09 category.  The previous husband did not sponsor her because he did not have enough income.  I think the lawyer sponsored her on the original I-485.  Honestly, I do not know the facts of all the early history.  She has a stack of I-797 NOA, that I have only looked through the ones from the last year or so.  Her lawyer is finally sending copies of every thing done on her behalf so I can understand and to help me fill out the new forms.

 

From the NOA that I have looked at.  She self petitioned under VAWA a I-485 in June of 2018.  That is currently still in process according to uscis website.  After reading comments today, I assume a I-360 was filed concurrently with that I-485.  But, I do not know that for a fact.  I did not know about form I-360 until seeing comments today.  So I know I am a little confused.  She had a EAD that expired about a month ago.  The new EAD just arrived a week ago, from a I-765 submitted in june of this year.  The uscis does not know about her/our recent marriage, so that does not seems to have affected the EAD processing.  She does not have a good handle on the situation either.  When I ask questions, a typical response is - "let me ask my lawyer"

 

After looking at the comments, it does seem with the complications that we should be consulting with a lawyer.  We will be getting copies of the forms submitted, so I will a better understanding of the situation.

 

Thanks for the comments. 

 

 

 

[geowrian 22,335]

27 minutes ago, Andrew194 said:

My error, she entered US under the C09 category.  The previous husband did not sponsor her because he did not have enough income.  I think the lawyer sponsored her on the original I-485.  Honestly, I do not know the facts of all the early history.  She has a stack of I-797 NOA, that I have only looked through the ones from the last year or so.  Her lawyer is finally sending copies of every thing done on her behalf so I can understand and to help me fill out the new forms.

None of this (the quoted text above) makes any sense sorry. Something is not adding up.

 

(c)(9) would be the classification of her Employment Authorization Document (EAD). It is not a class of entry (i.e. K-1 for a fiancee of a US Citizen, or B-2 for a tourist).

A lawyer cannot sponsor somebody (well, unless they are a qualifying relative themself).

It really sounds like:

1) She came to the US on a K-1 visa via her former husband.

2) The ex spouse never filed an I-485 (or if he did, it never got approved).

3) She divorced and filed an I-360 (+ likely an I-485 + I-131/I-765) due to abuse under the Violence Against Women Act (VAWA).

4) The I-360 above is no longer valid due to her marrying again.

5) You cannot file an I-485 for her since she entered on a K-1 visa. She will have to leave the US to obtain permanent residency.

 

Quote

The uscis does not know about her/our recent marriage, so that does not seems to have affected the EAD processing.  She does not have a good handle on the situation either.  When I ask questions, a typical response is - "let me ask my lawyer"

Sounds right....they don't yet know that she is ineligible.

 

Quote

After looking at the comments, it does seem with the complications that we should be consulting with a lawyer.  We will be getting copies of the forms submitted, so I will a better understanding of the situation.

Sounds like a good idea. It's going to take some good time to sort it all out and get back on the right path.

Edited September 8, 2019 by geowrian

[HRQX 4,145]

18 minutes ago, Andrew194 said:

she entered US under the C09 category.

That isn't an entry category; it's an EAD category:

https://www.uscis.gov/working-united-states/information-employers-employees/employer-information/employment-authorization (c)(9) Pending adjustment of status under Section 245 of the Act

[Andrew194 0]

Did I mention this is all new to me.   OK, after three times maybe I get it right.

 

She  came into the US as a B2 visa.  The US visa sticker in her passport says B1/B2.  

 

I am guess I am getting confused because she explained to me previously that she came to the US to marry this guy.  But..... officially, she arrived to US under a tourist visa.   

 

Thanks again.

[HRQX 4,145]

12 minutes ago, Andrew194 said:

She  came into the US as a B2 visa.  The US visa sticker in her passport says B1/B2.  

 

I am guess I am getting confused because she explained to me previously that she came to the US to marry this guy.

Getting married on a B-1/B-2 is OK:

Did she have preconceived intent to either Adjust Status or overstay? If so, that was 100% illegal. https://citizenpath.com/faq/preconceived-intent-adjust-status/

Edited September 8, 2019 by HRQX

[geowrian 22,335]

3 minutes ago, Andrew194 said:

Did I mention this is all new to me.   OK, after three times maybe I get it right.

 

She  came into the US as a B2 visa.  The US visa sticker in her passport says B1/B2.  

 

I am guess I am getting confused because she explained to me previously that she came to the US to marry this guy.  But..... officially, she arrived to US under a tourist visa.   

 

Thanks again.

So "She and her son were brought into the country as K1 visa" was incorrect? This is a very material difference that you need to be sure certain of. (although coming to the US on a B-2 with intent to stay would have been fraud - might want to also check what she said to CBP, if anything)

 

If you are certain she entered the US as a tourist (B-2 status), then the I-130 + I-485 packet from you is possible. It does have an uphill battle to show a bona fide relationship IMO, but there is a path within the US at least.

[Boiler 43,433]

Wonder what the real deal is.

[belinda63 2,981]

Before proceeding you need to know how she entered the US. Was it a visitor's visa or a K-1. As previously discussed this will make a HUGE difference in what is needed.

If she entered on a K-1 she will have to leave the country as she cannot adjust status through you. If she entered on a visitor's visa she can apply to adjust status through you.

The problem will be proving a bonafide marriage. She came on a tourist visa (or K-1) to marry her boyfriend, this failed so she filed for VAWA, now she has a new husband and wants a green card. No matter what her intentions or original desires were it will appear she came for a green card. 

 

[LotsOfForms 5]

What I would say OP is, start to get yourself clued up on all matters concerning USCIS immediately! Don't rely on your wife or the lawyer alone. You don't want to find yourself in a position where you transgressed the law! Ignorance will not be a defence you can use.

 

It looks like from your last post that having come into the country via a B1/B2 visa that you do have a path to achieve your/her aim of permanent residency. Intentions at the time of entering are not relevant, she was let in! Somebody going to pull up the notes of the CBP? Doubtful in my opinion.

 

Fully understand the implications of what you are embarking on, for your own good.

 

Best of luck

[aaron2020 11,651]

You need a lawyer to sort out this mess.  You are so confused that nothing is making sense.