SimranS

This is only an issue if one want to marry again under Indian Law. If the foreigner wishes to obtain their own divorce in India, they are free to do so. The USC is under no obligation to initiate such proceedings or even to cooperate.

Once he's sure he doesn't want the visa used, the first step is to contact the Consulate and have it revoked. The affidavit of support is actually in the sealed envelope in the foreign visa holder's possession, not with USCIS. It wasn't even submitted to USCIS. It was submitted to NVC.

If there's any chance he would ever want to marry again in India, he needs to be sure he follows Indian law in this regard.

Is it enough to e-mail the consulate and say he doesn't want the visa used, and they'll revoke it? or does he formally have to withdraw his I-130/affidavit of support

I’m a US Citizen and married to Indian Citizen in Hyderabad, India and like to divorce her (for some irreconcilable differences). What is the procedure for that? She got the CR1 Visa just 2 weeks ago and waiting for me to buy her a ticket.

You should first of all write to USCIS to withdraw your Affidavit of Support so she can no longer use the visa to immigrate. As far as I know you can withdraw your affidavit anytime before she becomes a Permanent Resident, i.e. enters the US for the 1st time on her CR1 visa.

If you divorce her through a US court, the divorce will be valid under US law but NOT under Indian law. If the marriage took place in India, Indian law requires you to divorce in India as per the law governing your marriage (Hindu Marriage Act, Special Marriage Act, etc.).

Self-Identity is very deep concept. Latinos across the world all look different (skin color, hair color, hair texture, eye color, etc). But in America you have to chose WHITE, BLACK or other. Many latinos are predominately of mixed race stemming from the racial mixing that took place generations ago (Native/Indigenous ancestors, African slaves & Spaniards). There videos below really make you think. How do identify yourself? Or what do people identify you as?

Latino celebrities share their experiences with race.

http://www.youtube.com/watch?feature=player_embedded&v=tT7_oQzDYMw

Negro: A Docu-Series about Latino Identity

http://youtu.be/7lxKIqWXJIs

Enjoy and please share your thoughts and experiences. My wife (whose Dominican) and I Black American had a lot to talk about.

She doesn't need to get her visa renewed, if she can stay in the US from January 2012 to May 2013 without leaving. The visa is only an entry pass, and it needs to be valid for her to be able to re-enter the US. However, once she is here, even if her visa expires she can still remain in the US legally as long as her I-20 is valid. If she had to leave the US again before finishing her studies, then she would have to get as new visa to get back in - but as long as she enters before the current visa expires, and her I-20 remains valid, she can stay until May 2013.

Arorapkj - no one can say for sure if you'kk have trouble re-entering or not. I personally think you have a strong chance to come back without any problems - but I'm not sure whether the IO at POE can see that you were denied an extension for the student visa. If they can, that will raise questions, and you should be prepared to show plenty of proof of why you are likely to return to India. Also, if they point blank ask you about a boyfriend in the US, you shouldn't lie under any circumstances. Only way to find out whether or not you can come back is to try.

She has a husband, not boyfriend, in the US.

Mumbai doesn't allow USC petitioners inside for the interview, just as a FYI.

Also, given the circumstances and the fact that this is a consulate in India that you're going to be dealing with, affidavits from your mom stating that 'she has spoken to him on Skype' will mean squat. I really don't know how to put this in a better way.

For this to have ANY other outcome apart from an AP or a denial, will be a miracle greater than the immaculate conception of Christ.

I apologize if I have caused offence but I am not in the habit of sugarcoating the truth.

LOL, another great post by Sachinky I would just like to add that IMO, even having affidavits from HIS mother and siblings aren't going to mean squat. For all the consulate knows, his immediate family members could be in on the "scam" themselves and just using the USC as a "stepping stone" to get all of them to the US eventually. Involving his extended family, relatives, neighbors, and greater society in some sort of traditional celebration/reception would be far better evidence as far as the Mumbai consulate is concerned.

And another thing I don't get; people telling me that we would have a better chance if I go to India, marry there and then live there for 6 months, a year and then go through the CR-1. How does a USC do that? What would I do with my job of 24 years? They certainly wouldn't hold my position for me. What do I do with my home, my furniture, car, etc? What about all the bills I have to pay? How am I paying for those not knowing if I could make enough in another country to stay afloat? I would really like to know the answers to those questions too. Sorry to be so verbose and I appreciate the forum's patience!

I'm one of those people who recommends going the CR1 route. However, going to India, getting married, and doing CR1 does not mean you *have* to stay in India for 6 months or any long continuous period of time for that matter. Even less than a month would be sufficient. Staying for some time after marriage would certainly be one plus point, but not *essential* either because the COs know that Americans have the types of obligations back home like you mentioned.

The K1 is inherently a riskier visa for various reasons. With CR1, just the fact that you've married in India with the Indian citizen's relatives and friends present will go a long way in getting you approved. From what I've observed it seems like most visa denials in India are because the consulate is convinced that the beneficiary isn't serious about their relationship and is using the petitioner with the intent to ditch them after getting what they want. In Indian culture marrying in front of one's family/relatives/society is a big sign that they are indeed serious about the marriage. With the K1 it would be too easy for the beneficiary to use the petitioner since they could easily ditch them after reaching the States without having to suffer any shame from society back home. So there are many cultural intricacies at play here and the consulate will look at things from this perspective.

Children 'in utero' cannot be abducted,and India has not signed on to the Hague Conv.

You will have little chance forcing her to leave the US with the child (in reality, zero chance).

The child's habitual residence is the US of A, not India.

Perhaps you can convince her to reconcile; failing that, there is not much else anyone can do.

India is not a Hague Convention signatory and since the child and his mother are U.S. citizens there is nothing you can do to force them to come to India. However, since the child was born during your marriage to his mother you would likely have automatic parental rights in a U.S. family court. As someone else suggested, if you have the money you could hire a lawyer in the U.S. to fight for custody/visitation. But unless you have another way of getting a visa to the U.S. there would not be any way for a custody/visitation order to be enforced, because a judge would not order the child to be sent to a foreign country (even if only temporarily).

Your best chances of being a part of your child's life are to reconcile with his mother or find another way to get to the US.

If your fiance is in India then you should get married in India with all religious rites and ceremonies. Make sure the event is documented properly (as in paperwork and photographs/ videos). Getting married in India along with friends and family proves that this is a real deal instead a marriage in thailand where no family members/ 100s of people are absent. You can always go to honeymoon to thailand (this may actually help you).

100% correct. Please please read and take to heart the new posts in your older threads:

http://www.visajourney.com/forums/topic/326585-civil-ceremony-weddings-in-new-delhi-help/

http://www.visajourney.com/forums/topic/327462-new-update-for-anyone-who-is-following-you-gotta-hear-this/

If you absolutely can't have a religious marriage then you'll at least have to have a reception in your fiance's hometown with his extended family and friends present, if you want even a shot at getting a visa this time.

In our case, there were no witnesses from his side. Just three from my side.

He didn't need a certificate of no objection of the US Embassy either.

I reestablished domicile in India for thirty prior to serving the notice -- I was in the US on a F-1 for four years. The notice has to be served 30 days before the wedding. Mr. Sachinky's signature was required for the notice but not his presence in India.

This was in Calcutta. Hope this helps.

Bear in mind though, CO's don't deny visas just because they are having a bad day. There is usually a reason and getting married will NOT guarantee a visa unless that issue is overcome.

NWD is a high fraud consulate and it is tough to get a visa for K-1 interracial couples because of dishonorable intentions of many beneficiaries.

I agree with the above and also want to add that having just a civil ceremony at the marriage registrar's office will look very suspicious when you do CR1. The Embassy may think (as they already do) that he is just using you for a visa if you don't have a traditional marriage or at least a large reception with his extended family and friends present. From the Embassy's perspective, if he and his family are really serious about his marriage to you then they will definitely do this.

While other people may have successfully gotten visas after a civil ceremony, you have to keep in mind that each case is different. Sachinky recently made a long post in another thread about the unfortunate double standards/racist issues which make your case particularly difficult.

It's sad but the truth is almost all Indians- except for a very small number of highly intellectual elite-class people- are still very shallow and racist when it comes to choosing a life partner. Having someone who follows traditional Indian culture is important. And even though Indians may not be "white" themselves, the vast majority still consider whites to be superior and blacks inferior. People are considered "beautiful" only if they have fair skin; it's very different from modern American standards. It's difficult to understand just how deep-rooted racism is here unless you've lived in India for a long time. Although I certainly don't subscribe to these views myself, the Embassy is aware that most Indians do and unfortunately will take that into consideration when determining your case.

IMO, the best way to increase the chances of getting approved next time is to have a wedding reception with lots of photos of his family, friends and relatives attending. Also, if you can live with his family in India for some time that will help too.

Question for gnasa and others:

We currently have a biometrics appointment scheduled for early December. This biometrics capture is related to the removal of conditions, NOT an application for a re-entry permit. But, if my wife takes the biometrics appointment for the removal of conditions, does anyone know if it can be applied to the re-entry permit? My understanding is that previously, this has not been the case— biometrics captures were junked right after they were taken, not stored in any re-accessible way— but that the system was being overhauled and was recently in flux (so I read).

If we could somehow apply the biometrics capture to the re-entry permit, then it would simplify things greatly, as we wouldn't have wait for a second biometrics appointment to be scheduled.

For us the biometrics were saved in the system and not junked immediately. It's a long story but when we got our first green card after POE there was a USCIS error on it and we had to send it back in for a replacement. 6 months later when our application was finally processed, we gave the biometrics on May 3, 2011 and received the GC a month later. However, right after receiving the new green card it was stolen and we had to again file for a new one. We filed at the end of June and the new card was issued on July 6, 2011 without a second biometrics appointment. Which basically means our biometrics from May 3 were still in the system and used to issue our new GC more than 2 months later.

While CBP is perfectly within their rights to do this, I just don't see them splitting up a family with 2 USC's over this. It just doesn't usually happen.

I totally agree with this- there's very little chance that she would be denied entry and put in detention, even if they do keep her green card pending a hearing. The fact that she will have been out of the country for less than a year and has a USC spouse and child makes it even less likely. As someone else said, USC husband and child would still be allowed in even if she was detained.

This entire B2 overstay ban seems very odd- how did your wife get her current green card? Did she adjust status in the US or get an immigrant visa at a consulate abroad? If she adjusted status then her overstay was forgiven and if she was abroad with a 10-year ban then wouldn't you have needed a waiver for her to get an immigrant visa?

Yes, it's true that if she leaves the country by bus the CBP wont have any record of it, because there's no passport/green card swiping when exiting the USA. However, when she reenters the US (whether by bus or plane), the officer will ask her how long she's been out of the US, and she would have to lie to them. This might work, but she could also be caught at any time if they question her further or suspect her for any reason of not maintaining her US residence.

I wish more people cared about how their actions affect their child/future child than they do about their own needs.

What if the father isn't able to immigrate because the relationship broke up before that could happen, and the child asks where her father is and wants to see him but can't because he can't travel to the US? Frequent visits by the child to the father's country probably wouldn't be financially practical either, if the mother allowed it at all.

On the other hand if the couple waits until they are both safely settled in one country and then has a child, the child will be able to have both parents in his/her life.

I wondered why you were asking again, lol. In my defense, you asked "Does this mean that the OP doesn't really have to worry about being removed without her child if she fails to adjust status or remove conditions". As such, it sure appeared the question was relating to the status of the child. IMHO, she should always be concerned. Yes, there is an initiative by the present administration to remove low priority immigration cases from current court dockets, but this does not mean she couldn't still be charged, especially when you factor in a potentially vindictive ex, who is on the hook by virtue of a signed sponsorship. If he makes enough noise to his local immigration/ICE, one never knows. Living an existence constantly looking over one's shoulder is not an ideal one. Perhaps if you had concerns regarding a specific case outside of the OP's, a new thread may be in order.

In the present situation her chances of being deported are practically "nil" as Jim noted above. Her husband would only be on the hook for financial sponsorship if she successfully adjusts status, which she hasn't yet. If she does adjust then she'll be in CR1 status and can file to remove conditions on her own, if needed. She wont have to worry about deportation after AOS because she'll be a legal resident.

She was worried about what would happen if her marriage dissolves before she can adjust status. Anyone would agree that being out of status and constantly looking over one's shoulder isn't ideal, but then what other choice does she have? She's the mother of an infant and the most important thing for her now is to be with her child.

No, not at all. Some huge differences from the quoted cases, and the OP's, the most important being the child's father is a USC who the OP is married to. Am assuming the father is listed on the birth certificate and that the child has been processes thru the US as a citizen born abroad to US citizen father. And the father is involved and invested in the child's life.

As such, without a custody agreement allowing the OP to remove the child from the United States, the OP CANNOT do so, as the biological USC father has certain rights. I have a twelve year old son and cannot take him on holiday overseas without a notarized letter from his birth father who hasn't been in his life for ten years allowing me to take him. I have been asked for the letter both by the airlines and the border control in several European countries. You can and will be turned back if you cannot present either this letter or court document that specifies you may remove the child from the United States.

Yes, the OP can try to remove the child from the United States using his Australian passport, but if she does this against any court-ordered custody agreement, or without explicit written permission from his father, this will be seen by the US government as INTERNATIONAL CHILD ABDUCTION.... something you really don't want to mess around with.

If the OP does divorce and chooses to leave the US, she MUST argue for the right to leave the United States WITH the child, and will likely be a large uphill battle, as once she leaves, any other visitation agreement made by the court is unenforceable. Without the father's consent, it may get very ugly and expensive.

ETA: You questioned what would happen if OP were deported or removed for being out of status; again, that father would be able to file motions to keep the child with him, if there wasn't a custody agreement, and the above info in this post would apply. Those other deportation cases involve children who were citizens by virtue of their birth but don't mention how involved their father is, or if the fathers were in fact US citizens. At the end of the day, if the father wants to keep the child here, the child must stay unless the OP "wins" in a custody battle. It's not an immigration issue here, it's a family law issue.

Most of this info has already been posted in the first few pages of this thread. We already know it would be an uphill battle for her to take the child back to Australia when his father is a USC. My question was about whether SHE is likely to be deported, which, according to present policy, she isn't (as long as she has no criminal charges against her). Even if she is out of status, if she doesn't voluntarily leave on her own it's very unlikely the ICE would forcibly remove her. The other cases mentioned really aren't even relevant here because they all deal with parents who had CRIMINAL charges against them which the OP doesn't.

The chance of them being deported now is practically nil. The president's recent executive order instructs DHS to review all pending deportation cases, and suspend cases where the alien has not been convicted of a crime or otherwise determined to be dangerous. This is current policy. It's not law.

Anyway, the most famous case is probably Elvira Arellano. She was working as a janitor at O'Hare airport in 2002 when she was arrested for Social Security fraud. She fought her deportation for years, and gained national attention when she tried to take sanctuary in a church in Chicago. She managed to escape undetected, and then tried to do the same thing in Los Angeles. She repeatedly claimed she should not be deported because her son was born in the US. She was finally caught and summarily deported in 2007.

http://en.wikipedia.org/wiki/Elvira_Arellano

Thanks for posting the info. Does this mean that the OP doesn't really have to worry about being removed without her child if she fails to adjust status or remove conditions ?

http://dreamacttexas.blogspot.com/2009/04/deportation-then-losing-your-child.html

Also found this link- contains a NYT article about an illegal Guatemalan immigrant woman with a USC baby who was jailed after a raid on her place of work. The story is very sad but also contains reference to the fact that parents of small children were let go:

"Immigration authorities quickly released several workers who had small children. But authorities said Ms. Bail was ineligible to be freed because she was charged with using false identification."

As is most often the case only the parent facing criminal charges was actually detained and ordered removed. If they're releasing illegal immigrant parents of small children then logically a woman who entered legally and is only out of status would be even less likely to be detained.

here: http://www.law.berkeley.edu/files/Human_Rights_report.pdf it is an article for a Human Rights movement that discusses the number of USC children affected by the deportation of their parents and why policies should change. Though it DOES mention crimes and the fact the parents are LPR.. hmm

Happens more often than you think. Usually the child is a dual citizen though (without their parents home countries passport though travel there would be as a visitor). I'll keep looking for non-criminal non-resident stories. Here's a DHS article: http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_09-15_Jan09.pdf and here is some random article: http://blog.lawinfo.com/2011/08/15/do-illegal-immigrants-with-u-s-born-children-ever-get-deported/ (though this article does prove that the illegal immigrant is free to take the child... but there is a caveat there that the other parent must approve it) you just need to google honestly. The info is there.

I checked the links you posted but didn't find info related to any actual cases like the OP's. They have some good general info about the issue. We all know that someone CAN be deported without their USC children, but in the exact circumstances of this case how likely is it to actually happen? Even if we were to find some isolated case of a lady in this situation being deported, for every one case of it happening how many similar cases are there where it didn't happen? We can see from recent posts on VJ and most of us know already that there are millions of illegal/out of status immigrants in the US and the vast majority are never going to be deported unless they commit a crime. The fact that a lady has a small USC child CAN play a role in whether the ICE decides to deport her or not, esp. if she has no criminal record.

You have plenty of rights - most of the same rights that US citizens have. You just don't have a right to remain in the US. Immigration is a privilege.

Entering a marriage for reasons other than love is not generally a crime in the US. Entering a marriage primarily to evade immigration law IS illegal, however. A US citizen can be imprisoned for up to five years and fined up to $250,000 for this. It would be extremely unusual for the US government to find that a US citizen was guilty of this and the alien was not. In fact, I can't recall this ever happening. Are you prepared to accuse your husband of immigration fraud and simultaneously claim that you weren't in on it?

You might have a chance with the abuse claim, but you need proof. Be extremely cautious of making any recordings. Most states have a "one party consent" law, which means only one party in a conversation must be aware that the conversation is being recorded. However, there are twelve states that have an "all party consent" law, which means all parties in the conversation must be aware that the conversation is being recorded. These states are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. If you live in one of these states then do NOT record any conversations without your husband's consent.

You should try to get at least one person to witness the abuse. It should be someone who is willing to sign a sworn affidavit. The more witnesses you have, the better it will be.

Emotional and verbal abuse isn't as obviously damaging as physical abuse, so you'd probably need a qualified psychiatrist or psychologist who could provide evidence on your behalf.

Don't proceed with the divorce until you've consulted with an immigration lawyer. If you decide to pursue adjustment of status by claiming abuse then you either want to still be married, or you'll need to prove that the claimed abuse was the primary reason for the divorce. This can be difficult if you happen to live in a "no fault" divorce state.

Hi Jim,

Could you please provide one or more actual examples or cases where a woman was deported without her USC infant , JUST for being out of status, when she never had any criminal charges against her?

Thank you all, those are really helpful answers! I'm going to have him look into getting the date corrected. Everything is just such a nightmare here to get it done. The bribe I can deal with, just not another 3 long weeks of them giving us the run around. Poor hubby almost lost his job we were spending so much time at the courthouse just to get the initial registration done.

For proof of Indian residence your residency permit and passport stamp will be plenty. For proof of a US domicile, you have probably filed income tax the past few years and have a valid driver's license, etc. so that shouldn't be a problem.

If you give them the bribe up front why do you think it will take another 3 weeks just for the correction? They will probably do it in 1-2 days if you bribe them. Although I think getting the correction is a good idea, it may not be as big a deal as you think. I was also married in Amritsar and was legally supposed to register my marriage there but didn't because we live in the state of Jammu and Kashmir. Ours is a special status state with no registrar of marriages so we got our marriage registered through a court here.

On the day of the CR1 interview the Indian guy who did our pre-screening tried to ask why our marriage wasn't registered through the marriage registrar, and we explained that our state doesn't even have a marriage registrar. He tried to argue that he has other people's registration certificates from the J & K registrar but after looking and looking he was unable to find one to show us, so he accepted what we had. No one even thought to question why we didn't just register our marriage with the registrar in Amritsar where the wedding took place.

Our original marriage certificate from the Gurudwara we married at had only my first and middle name (which isn't even on my passport) without my last name at all. On the court registration cerificate our ages were off by like one year each. No one at the Embassy even mentioned this and we got our visa without any problem. Minor errors are common here.

Hi Guys,

My husband's case is still in AP after his second interview. We just celebrated our 2 year wedding anniversary. If he is issued a visa will the embassy know that he should now receive a 10 year green card or should he tell them at POE that we have been married 2 years?

Since you've already been married 2 years and they've not yet issued the visa, they should issue you the correct IR1 visa rather than the CR1. However, if they don't, I would highly recommend contacting the Embassy before travelling to the US to get the error corrected. Don't count on being able to fix it at POE- we were in the exact same situation ourselves (issued CR1 but entered US after 2nd anniversary) and despite informing the officer at POE we were issued the incorrect 2-year GC. It was a long 7-month process to get the correct 10-year card from USCIS.

Once your wife become a US Citizen,she can petition her mom. Once the mom is here she would be an LPR and the mom can petition her son.

When the mom becomes an LPR she would only be able to petition her son in the F2 category, which would require the son to remain unmarried until he reaches the USA. IMO, depending on how old the son is, the better option might be for the wife to file a separate F4 petition for her brother when she becomes a USC. Then if the brother is by chance married when his number comes up he would still be able to immigrate with his whole family. I'm not familiar with the exact wait times for the F2 and F4 categories for the Philippines; if someone is and can do the math it might help the OP.

Hello,

My wife just recently arrived in the US as a Lawful Permanent Resident (LPR). I was wondering if she can have her mom file for an immigrant visa to come to the states. We would obviously sponsor her but I didn't know if it was possible since my wife is a LPR or will I have to wait for my wife to become a US citizen first? I saw something about an IR-5 for parents but everything I saw on it didn't really answer my question. Also, my wife's mom has a son (my wife's brother) who is under 18 years old so if her mom came over would he come with so we would be sponsoring and applying for both of them or would he stay in his country? Any help would be useful. Thanks in advance!!!

If you're a USC then your wife can become a USC in 3 years assuming she stays married to you. She can file for her mom in the IR5 category as soon as she becomes a citizen. Since there's no quota in the IR5 category her mom should get her IV within about a year of filing the petition. This brings the total wait time for mom to around 4 years, not anywhere near 10 years. Unless I'm missing something?

Why? Apples are not oranges. Acquiring LPR status can be accomplished in several ways. An LPR is NOT a citizen. Other visa categories such as H1 are there for a different purpose, and so reasonably have different requirements and privileges. There are REASONS for different privileges, results and treatment. Again, think "fairness" not "equality" and understand the purpose behind things instead of just seeking what YOU think will make YOU happy.

Really, the "She has this, so why don't I get the same?" is little kid stuff. Grow up!

Did you actually read my response or just the first line? I clearly stated that I could see the difference between GC and H1 visas since they do indeed have different purposes and privileges. At the same time if someone is of the opinion that the law should be changed to do away with quotas for the F2A category they have every right to think that way. Slow down and take the time to actually read what someone is saying.

LPRs are NOT citizens and as such ARE subject to quotas. I do not agree with that seeing H1s and F1s can bring in their dependents whereas LPRs cannot. I think there should be a way where they can bring their spouses/kids over with some restrictions similar to F2 status. But I digress, that has nothing to do with fraud.

I totally agree that LPRs should also be allowed to bring their spouses and minor kids without a wait. At the same time I do kind of see the difference between F1/H1 dependent cases and F2A cases in that the green card is a much more valuable thing to get... it's lifelong residency which allows the spouse to work immediately upon entry unlike F1/H1 dependents who can't work at all. Unlike the F1/H1 the GC can't be taken away if employment is lost or someone leaves school.