waiver

[cherr1980 1]

You need a GOOD family law lawyer and a GOOD immigration lawyer. TWO different, so will be two different expenses.

Right now I can tell you, that depending on your state...is better to start with the Family Law lawyer since you will need to fix that first to move over the other one.

Since you have kids, things can get messy and will required time. If you have limited access to money and you can proof that, you can try to get legal aid to help you in both fronts.

I think it is unnecessary to get both a family law and an immigration attorney. Doing things that way is usually frought with all kinds of problems - expensive, lack of coordination, one interfering with or delaying the actions of the other - just to name a few. There are very MANY immigration lawyers who also specialize in family and divorce law. IMHO, it will be better and more cost-effective to procure the services of one of those.

Not all immigration lawyers are good family law lawyers...I would not trust an OB/GYN that is an orthodontist. There are, that's for sure, but VERY difficult to find. Normally they both can work together. Unless he filed under WAVA, then the family law is first than the immigration part...since anyway you must be divorce. The law is pretty clear, you can't file if you are separated or in divorce proceedings. Check the last memo about that, that was in 2003 or 05 if I am not wrong. It was a bad memo...but not too much about that.

Marriage/divorce and anullments has nothing to do with federal law (immigration) is govern by state law and your family law should cover your county of residence. And with kids, as i said before, can be way more messy.

He needs to verify his options with an immigration lawyer, but for his own security I would care to be away of that person as soon as possible, but that's just me. I know he has many other things to care about, like his kids.

Anyway I would suggest that if his time is near, which he hasn't established when he has to file for I-751. In another forum, a person in divorce proceedings decided to file anyway alone the I-751, received a RFE and by that time was divorced, so was able to give the divorce decree...now that's call buying time. But an immigration lawyer should advice him about his possible and best course of action.

[cherr1980 1]

One has to be very careful here, because if there is plenty of time, getting the family law issues sorted (or significantly under way) is obviously a good thing to do from a practical perspective, but if the 2 year conditional status is nearly expired, it's crucial that the I-751 is filed in time since status lapses automatically on the expiry of the 2 year green card unless an I-751 has been filed. And it can be very difficult, time consuming and expensive to recover that status if it has been lost this way.

-Well the timely filed won't matter if the spouse does not sign it, right? If it does it, good for him. If you are married it "must" be filed jointly...he can't force her to sign. An immigration attorney should tell him what to do in that matter...if he is able to file under WAVA, then nothing else is needed (you don't need to be divorce under that clause) and he can by himself. I would start carrying a recorder...

It's also important that the immigration and family law attorneys work together, because the way the divorce case is handled and the materials it generates can have an effect on evaluation of the I-751 in self-petitioning cases. It could be hard to claim abuse in an I-751 if there is nothing but sweetness and light reflected in the family law case!

-Yes, agreed. But it depends...if he goes by abuse clause aka WAVA then does not need to be divorce. In a divorce proceedings both parties are really fightning for what the other wants of the other, in their case the major thing will be the children custody. And yes, a contested divorce depending in their state can take years. And even to be able to filed for divorce depends in their State there are some states that required be separated for over a year...as I said, is not easy. Yes is practical in a safety talking. But he has way more at stake, and is not the GC is his kids. Their case in court will be already rocky because there are 1. kids and States are coming way more strict in those matters 2. his spouse already make things clear that won't be easy for him to do anything. There is no such thing in a divorce that will "look" nice and pretty even both signed an uncontested divorce, you must filed a settlement agreement at least that's how in my county. I really won't wish anybody such experience...but if it has to be done, take a lot of vitamins.

At the really will depend what are the course of action that an immigration lawyer(s) can advice him.

His major problem is that his spouse already said that she won't sign the joint file application...which we still don't know when needs to be filed. If he has time to get an immigration lawyer and see what to do...or play the kitty cat with her until that day so at least she signed the papers and then he can see what to do...in any case, I hope he be safe.

Edited June 18, 2008 by cherr1980

[Andy 2]

The law is pretty clear, you can't file if you are separated or in divorce proceedings.

Yes you can. Check the current I-751 itself, it allows for self-petitioning prior to divorce in cases of abuse.

(immigration) is govern by state law

Not quite sure what you mean, but to be clear, immigration is entirely federal law. Family law is (almost) entirely State.

[cherr1980 1]

The law is pretty clear, you can't file if you are separated or in divorce proceedings.

Yes you can. Check the current I-751 itself, it allows for self-petitioning prior to divorce in cases of abuse.

(immigration) is govern by state law

Not quite sure what you mean, but to be clear, immigration is entirely federal law. Family law is (almost) entirely State.

Yes, I know that...but that's if his immigration attorney tells him that he has enough proof to make such filing. We don't know...if he does...good for him, he will be good to go.

Oh yeah...I mean...marriage/divorce and anullment is goverment by State law not federal (like immigration) I guess that's what I mean.

[cherr1980 1]

I think, in general, we are saying the same thing. He can have a good case under WAVA, but all will be if he is able to demostrate and gather proof of his abuse status. Unfortunately many people don't think that save that single tiny paper that says "Im going to kill you..." is very important.

He can go http://www.ailalawyer.com/

[Andy 2]

The law is pretty clear, you can't file if you are separated or in divorce proceedings.

Yes you can. Check the current I-751 itself, it allows for self-petitioning prior to divorce in cases of abuse.

(immigration) is govern by state law

Not quite sure what you mean, but to be clear, immigration is entirely federal law. Family law is (almost) entirely State.

Yes, I know that...but that's if his immigration attorney tells him that he has enough proof to make such filing. We don't know...if he does...good for him, he will be good to go.

Oh yeah...I mean...marriage/divorce and anullment is goverment by State law not federal (like immigration) I guess that's what I mean.

There are several very obvious things in this case if taken at face value based on what has been posted. The first is that an I-751 is pending, whether immediately or into the future we don't know. The second is that the OP is the victim of abuse. The third is that the spouse is resistant to co-signing an I-751. Additionally, there are children involved, though we don't know whether they are US citizens or not - a factor which could be material in the choice of filing.

Immigration makes it very clear that in a case where an I-751 is pending but the immigrant spouse has been victim of abuse and the citizen spouse refuses to sign, the immigrant can self-petition, and no divorce is required to have been actioned or even filed in order to allow that. There is nothing in the immigration issues here more complex than that. To be sure, self-petitioning on the basis of abuse will require supporting evidence, and good legal counsel is always advisable when stepping outside the mainstream of cases, but the OP here has very clear and simple rights to self petition.

The family law issues which you raise are entirely valid, but are not part of the immigration case - and since the OP can self-petition if the abuse is as described, and needs not wait for divorce to do so, there is no issue relating to the family law side of this horrible situation which would render that more imperative than pursuing the immigration issue where that is pending and failure to do so would result in loss of status, putting the OP into an even more hazardous (and much more expensive) immigration situation.

Bearing in mind that USCIS adjudication of a self-petitioned I-751 where abuse is being claimed may be affected by a delay in filing ('exactly how much abuse must there have been' being the most obvious question an adjudicator would ponder) there is no advantage or purpose to delaying filing, other than to gather and assemble evidence and possibly make final attempts at resolving the matrimonial conflicts. The law however was written very clearly to provide a means to protect victims of abuse from having to delay.

That's really my only point. In broad terms your comments regarding the family law aspects of this are right - just that while those are of utmost importance in the human sense, they are not necessarily so in the legal sense.

[dudu2black 0]

I intend to write a book based on my experience as an alien or k-1 spouse. I have no doubt that my situation is one of many cases. I have many times gotten to the point where i want to give up everything that i have going on for me here in the U.S and return home where i am from so has to have a peace of ming and no to be a slave of love.

Over a year ago my spouse wanted to prove a point to me over an argument .Even though she was the one that did me wrong she called the cops on me and lied that i hit her (guess what she was the one that hit me).I was flabbergasted and can never forget or forgive. Anyway police report says" domestic battery"I was arrested taken to jail for just a night .I was not charged and the case was dismissed in court. You may wounder what i am still doing in such a spouse...my kids?

My question now is if i am filling out the 1-175 form where it says" have you been arrested, jailed "e.t.c.Since it was dismissed do i still thick the box or skip it?

[Minya's wife 24]

I intend to write a book based on my experience as an alien or k-1 spouse. I have no doubt that my situation is one of many cases. I have many times gotten to the point where i want to give up everything that i have going on for me here in the U.S and return home where i am from so has to have a peace of ming and no to be a slave of love.

Over a year ago my spouse wanted to prove a point to me over an argument .Even though she was the one that did me wrong she called the cops on me and lied that i hit her (guess what she was the one that hit me).I was flabbergasted and can never forget or forgive. Anyway police report says" domestic battery"I was arrested taken to jail for just a night .I was not charged and the case was dismissed in court. You may wounder what i am still doing in such a spouse...my kids?

My question now is if i am filling out the 1-175 form where it says" have you been arrested, jailed "e.t.c.Since it was dismissed do i still thick the box or skip it?

She hit you, you did not touch her, but the police took you to jail for domestic battery? (Did you nto tell the cops that she hit you and not the other way around?) This is a little confusing to me....I do understand that in many cases the police tend to give the female partner 'more' benefit of doubt in domestic cases, but they don't just haul you off to jail on the say so of an irate wife....they do queston everyone involved.

As for what you fill on the I-751 form...you do check that you have been arrested. The question there is simple:

Have you ever been arrested, detained, charged, indicted, fined or imprisoned for breaking or violating any law or ordianance (excluding traffic regulations), or committed any crime which you were not arrested in the United States or abroad?

You were arrested...that the charge for which you were arrested was later dismissed in court is another matter...so you would answer truthfully with a YES. I think you would then provide documentation that the charge for which you were arrested was subsequently dismissed.

-P

[Andy 2]

I intend to write a book based on my experience as an alien or k-1 spouse. I have no doubt that my situation is one of many cases. I have many times gotten to the point where i want to give up everything that i have going on for me here in the U.S and return home where i am from so has to have a peace of ming and no to be a slave of love.

Over a year ago my spouse wanted to prove a point to me over an argument .Even though she was the one that did me wrong she called the cops on me and lied that i hit her (guess what she was the one that hit me).I was flabbergasted and can never forget or forgive. Anyway police report says" domestic battery"I was arrested taken to jail for just a night .I was not charged and the case was dismissed in court. You may wounder what i am still doing in such a spouse...my kids?

My question now is if i am filling out the 1-175 form where it says" have you been arrested, jailed "e.t.c.Since it was dismissed do i still thick the box or skip it?

I used to be very active in immigration casework, and yours is sadly not at all unusual. Indeed, there have been many, many people over the years who have come to the US with good intentions and who married in good faith, and have found their existence here to be one of vulnerability and isolation. Abuse too, sad to say. Neither has it been unusual to see cases where a US citizen spouse has level accusations of abuse or battery, sometimes for leverage, sometimes as a way to try and extricate themselves from marriage and try and have their partner deported (though it doesn't work quite that simply as they later find out) or just to demonstrate that they can. It may not help you at all to know you are not alone in this experience, but you are certainly not!

Neither are the USCIS entirely unaware of it happening either, or of the human issues and the sort of reasoning as you have expressed. As an agency they don't much care, but individual adjudicating officers see this regularly, so they have a better understanding and feel for it than most would give them credit for. Indeed, your point about sticking it out for the sake of the children is another very common theme in this sort of situation.

In terms of the arrest, as said you must include it. However, depending on the documentation of the incident you may have or be able to obtain, it may actually help you. Remember, the crux of this is to gather evidence which shows you are the victim of abuse, that being one single incident.

[dudu2black 0]

I intend to write a book based on my experience as an alien or k-1 spouse. I have no doubt that my situation is one of many cases. I have many times gotten to the point where i want to give up everything that i have going on for me here in the U.S and return home where i am from so has to have a peace of ming and no to be a slave of love.

Over a year ago my spouse wanted to prove a point to me over an argument .Even though she was the one that did me wrong she called the cops on me and lied that i hit her (guess what she was the one that hit me).I was flabbergasted and can never forget or forgive. Anyway police report says" domestic battery"I was arrested taken to jail for just a night .I was not charged and the case was dismissed in court. You may wounder what i am still doing in such a spouse...my kids?

My question now is if i am filling out the 1-175 form where it says" have you been arrested, jailed "e.t.c.Since it was dismissed do i still thick the box or skip it?

[dudu2black 0]

I intend to write a book based on my experience as an alien or k-1 spouse. I have no doubt that my situation is one of many cases. I have many times gotten to the point where i want to give up everything that i have going on for me here in the U.S and return home where i am from so has to have a peace of ming and no to be a slave of love.

Over a year ago my spouse wanted to prove a point to me over an argument .Even though she was the one that did me wrong she called the cops on me and lied that i hit her (guess what she was the one that hit me).I was flabbergasted and can never forget or forgive. Anyway police report says" domestic battery"I was arrested taken to jail for just a night .I was not charged and the case was dismissed in court. You may wounder what i am still doing in such a spouse...my kids?

My question now is if i am filling out the 1-175 form where it says" have you been arrested, jailed "e.t.c.Since it was dismissed do i still thick the box or skip it?

I am replying to your mail and the confusion in the message.

I left the house during the argument when the cops came to arrest me. I was arrested at the gas station not too far from the house (they probably trailed the car she gave them the number and description of the car). I told the cops i did not hit my spouse and he (cop) said my spouse said a different thing and i was arrested -they believed her (i have never ever been in jail before whether back home or else where she put me in jail for no just reason and for the first time in my life that still remains unforgivable and unforgettable and i told her.The cop did not even show up in court but the case was dismissed.So you see my spouse was right the law favors women. My spouse still brags about her action. She did what she did to show me the power she's got in U.S and possibly to destroy any good purpose, dreams or aspirations i may have in the U.S (if i don't dance to her tune).And she may have done it to reduce me to a level she can manipulate.

She knows i am suppose to file my 1-175 she wants me come begging or crawling to show she still has control over me but i don't intend to beg. Even if i begged her she may not cooperate and she will always have her way and still believe " I cannot do without her" which she said to me many times.

My question now is this: Do i go crawling and begging or go on with the waiver? If i go crawling and begging her and she decides to sign with me it will save me lawyers fees. On the other hand should i just face the reality of my situation get a lawyer and get over with my worries?

[Andy 2]

My question now is this: Do i go crawling and begging or go on with the waiver? If i go crawling and begging her and she decides to sign with me it will save me lawyers fees. On the other hand should i just face the reality of my situation get a lawyer and get over with my worries?

There is just no way anyone but you can answer that question, because only you know the circumstances, the personalities, the issues and the way it all feels. All we can do really is give you the practical details about what your options are in regard to immigration issues and the broad practicalities - which I think has been done here.

You face a rather uncertain future either way as you obviously appreciate. Jointly filed I-751 petitions are far easier to get approved than self-petitioned ones, even if only because they fit in the mainstream of cases so they need less examination and personal judgement on the part of immigration officials adjudicating them. On the other hand, even if your wife is prepared to jointly file, there is no guarantee she will not withdraw (or threaten it) or refuse to co-operate (or threaten it) if the case is referred for interview. If she likes to wield power over you, it seems likely she would use what leverage she could, and a joint I-751 might seem to her to be such leverage. Only you know her well enough to make that judgement, or know whether you could cope with the stresses and strains if it were to happen.

On the other hand, self-petitioning takes all the power away from her, and means your fate is entirely in your own hands. Approval then depends on what evidence you have been able to provide to establish the on-going abuse as sufficient to destroy the marriage you entered into in good faith. Only you know what evidence you may be able to put together, both in terms of having entered into marriage in good faith, and been the victim of abuse which then caused it to collapse.

One thing is for sure, you are well advised to 'face the reality of your situation' as you put it, and think in practical terms, not emotional ones. Unless you are prepared to co-file with your wife and trust she will remain cooperative, a good immigration attorney is an absolute essential. The sooner you hire one the sooner you can get your life and future back under some semblance of your own control.

[dudu2black 0]

I came in through a K-1 visa. I have been through hell with my spouse since i came to the U.S. I have been abused,threatened,deceived, and battered by her. The trust for her has been broken.We have two kids and they all i have in the world.My spouse have been very abusive, belittled me ,threatens me all the time, battered me that i had to get a retraining order against her. She has taken undue advantage of me because she feels she is all my hope of living and working in the United States and having a peace of mind.I want a divorce badly but can not afford to a lawyer yet.I do not have any family or very close friends in the States.I worry about the faith of my kids. I still living pain fully and regrettably with this woman.I want to divorce her because i cannot continue to be miserable any more but i do not want to jeopardize getting my condition on the green card removed even though my spouse has promised she wont sign or go to the interview with me because she senses i will eventually leave her knowing all she has done.I have stayed long in this marriage more because of my young kids who needs me but i am unhappy staying and be treated unfairly.

My question now is, since she promised she wont sign the 1-175 form with me can i just go ahead and file for a waiver even though am not divorced yet?

[dudu2black 0]

My spouse was born here but her parents are from west Africa. We have 2 kids born here. We have been married for 2year and one month now. It has been the saddest yeas of my life.

Well based on your contributions i will tick Yes on the 1-175 form. I have the court document stating the case was dismissed and a document from my public defender that the case was presented to the judge for it to be expunged from my records.

I spoke with an immigration lawyer today and he said it will cost me (rough estimate) about 4,000 dollars even at that it is not certain.I don't have that kind of money now. The only alternative to that is to go begging and crawling (I dont know how to pretend to be in love after all have been through) or wait till the expiration date on my temporary green card then pack my stuff and go back to my father land. All i need now is a peace of mind, happiness and keep my self pride.

What do you do if you where in my shoes?

[russian_armenian 4]

My penny about annulment. I think that for immigration purposes annulment still allows you to have the benefits you have petitioned. For all other legal purposes, annulment means that the marriage has never existed from day1.

In place of op, I would open yeallow pages and schedule a first free consultation with at least 3 lawyers in his area. Some offer free 1 hour consultation/others 30 min. But he will definetly learn what proof he needed to file inder WAVA. So, maybe he needs to record conversations with wife or take statements from neighbours or see marrage councelor and get his professional statement etc. I dont really know how WAVA cases are handled in terms of docs. But I am sure that everybody understand that women could be abusers as well as men.

The law is pretty clear, you can't file if you are separated or in divorce proceedings.

Yes you can. Check the current I-751 itself, it allows for self-petitioning prior to divorce in cases of abuse.

(immigration) is govern by state law

Not quite sure what you mean, but to be clear, immigration is entirely federal law. Family law is (almost) entirely State.

Yes, I know that...but that's if his immigration attorney tells him that he has enough proof to make such filing. We don't know...if he does...good for him, he will be good to go.

Oh yeah...I mean...marriage/divorce and anullment is goverment by State law not federal (like immigration) I guess that's what I mean.