I want your thoughts on this immigration case

[Allaboutwaiting 2,500]

Found a random case that caught my attention -mind you, I just have bits and pieces about it-.

 

Woman enters the country on a K1, gets married, claims abuse during AOS and gets divorced. Husband "cancels" immigration process and now, she is filing through the father -naturalized citizen- as petitioner, though she states she will get citizenship, not residence (unsure if this "citizenship" thing is a misused term or an actual claim from her attorney).

From my understanding, she's not a resident now, as original AOS was canceled and maybe a VAWA self petition was not successful. 

So, in this case, if I'm not mistaken, she has no status currently and if petitioned by the father, it would take well over 10 years to obtain a green card.

Given the circumstances, some questions come to my mind:

-can the beneficiary stay in the country all those years?

-under which status? 

-is the EAD/AP renewed periodically until the petition is approved?

[geowrian 22,335]

It's actually more complicated than that, but there is one item that makes everything else moot with regards to AOS: she came on a  K-1 visa. Therefore she can ONLY AOS with support of the original petitioner (an I-864 from them is required), or via VAWA or a few very uncommon special categories. She cannot AOS via a petition from any other spouse, family member, etc. This is a strict restriction on K visa holders.

So she will need to get a visa abroad.

If she has 1+ year of overstay, she will get a 10 year bar upon exit from the US. A parent is a qualifying relative for an I-601A to waive that bar, although showing the extreme hardship may or may not be a challenge with their specific circumstances.

 

No idea on what basis she would get citizenship directly or immediately here...

If she were a resident, anything with her father is moot...there would be no need to file for her.

 

Secondly, you cannot AOS if you have overstayed, except in Immediate Relative (IR/CR) category cases (or those special categories). Her case with the father would be a family preference category (F1), in which she must be in and have maintained lawful status to AOS. Overstay is not ignored in her case.

 

2 hours ago, Allaboutwaiting said:

-can the beneficiary stay in the country all those years?

-under which status? 

-is the EAD/AP renewed periodically until the petition is approved?

1. Only legally if granted some sort of authorized stay.
   1. A properly filed VAWA claim can do so, if they took that route. They can remain while the case is adjudicated. This woul
2. Status? None. She is ineligible for any other status as a K-1 entrant.
   1. TPS, Deferred Action, etc. are possible options (not a legal status), if granted for some reason.
3. If her case is still pending and granted an EAD and/or AP, that can be renewed until the case is adjudicated. If her case was denied, any EAD/AP is revoked.
   1. But nothing with her father's petition would permit this.

[Allaboutwaiting 2,500]

So it is very likely that this person's attorney is just giving her false hopes -and charging for it-. 

[geowrian 22,335]

I have no idea what the attorney is telling her, nor if that matches what she is telling others.

As noted, there is a way for her to get permanent residency via the father's petition, albeit via a visa and not AOS. And it involves a waiver. And not getting caught in the US in the meantime and deported. It is possible she could only spend days/weeks outside the US total. It's also possible she will never be let back in.

[Just Paul 4,591]

Filing an I-360 as VAWA would be the most practical way for her to stay.  AOS'ing any other way would be problematic.

[Allaboutwaiting 2,500]

1 hour ago, geowrian said:

I have no idea what the attorney is telling her, nor if that matches what she is telling others.

As noted, there is a way for her to get permanent residency via the father's petition, albeit via a visa and not AOS. And it involves a waiver. And not getting caught in the US in the meantime and deported. It is possible she could only spend days/weeks outside the US total. It's also possible she will never be let back in.

 

38 minutes ago, Paul & Mary said:

Filing an I-360 as VAWA would be the most practical way for her to stay.  AOS'ing any other way would be problematic.

Certainly we can only speculate.

I stumbled upon this case on social media. The few details given appeared quite odd. 

A few commenters on the story advised VAWA, but my guess is that they already tried and failed. 

Edited May 16, 2020 by Allaboutwaiting