Divorce K3 pre AOS i130 withdrawl

[euronix 0]

Hi everyone,

I have a question.

My husband is here on a k3 visa. It is obvious things are not going to work out and we will be getting a divorce. We have NOT filed AOS.

What steps do i need to take. Since we have not filed AOS can I simply correspond with the embassy that has the approved i129f and i130 and ask that the i130 be withdrawn? Would i have to deal at all with USCIS in the U.S.?

In that case would he be able to stay in the U.S. for the duration of the K3 or would he be required to leave sooner?

And as far as divorce is concerened, would he have any legal options to claim alimony from me?

Thanks in advance.

[cjgator 2]

This one I think you may want to get a lawyer's advice on who doubles in both immigration and family law. Many do practice in both areas. Generally, you could pay $250 or $350 for one hour of their time and they can give you the straight story. When I had an initial consult with an immigration lawyer prior to filing my I-130 and I-129F, he told me that with the I-130, once it was approved you were responsible for your spouse's support for a period of up to 2 years, even if the spouse left you. That's the Federal, not the state guidelines. But, when they are over on the K-3, I don't know if the same rule applies, because I'm not sure how quickly your soon-to-be-ex will be required to leave the country, if you divorce before the I-130 is approved.

As far as the state guidelines would go regarding alimony, I can only speak about Florida, but again I think this is going to largely be a function if he finds some way to remain in the US and the state you are in. In Florida, and many states, although alimony can theoretically be awarded in any divorce case, case law generally dictates that the marriage had to last a minimum amount of time, a period of several years (5 years tends to the be minimum benchmark in Florida) before alimony is seriously considered by the court, except in extraordinary circumstances. And, again, if the future national jurisdiction of your spouse is in question, I think a state court would be reluctant to award him that.

Again, I want to reiterate that I think it would be worth the up-front investment to get a lawyer's take on the matter, but maybe there are others on the website who can offer more, as well as the other questions you had. Good luck.

Hi everyone,

I have a question.

My husband is here on a k3 visa. It is obvious things are not going to work out and we will be getting a divorce. We have NOT filed AOS.

What steps do i need to take. Since we have not filed AOS can I simply correspond with the embassy that has the approved i129f and i130 and ask that the i130 be withdrawn? Would i have to deal at all with USCIS in the U.S.?

In that case would he be able to stay in the U.S. for the duration of the K3 or would he be required to leave sooner?

And as far as divorce is concerened, would he have any legal options to claim alimony from me?

Thanks in advance.

I'm sorry - when I said "the I-130 is approved", I meant the AOS.

This one I think you may want to get a lawyer's advice on who doubles in both immigration and family law. Many do practice in both areas. Generally, you could pay $250 or $350 for one hour of their time and they can give you the straight story. When I had an initial consult with an immigration lawyer prior to filing my I-130 and I-129F, he told me that with the I-130, once it was approved you were responsible for your spouse's support for a period of up to 2 years, even if the spouse left you. That's the Federal, not the state guidelines. But, when they are over on the K-3, I don't know if the same rule applies, because I'm not sure how quickly your soon-to-be-ex will be required to leave the country, if you divorce before the I-130 is approved.

As far as the state guidelines would go regarding alimony, I can only speak about Florida, but again I think this is going to largely be a function if he finds some way to remain in the US and the state you are in. In Florida, and many states, although alimony can theoretically be awarded in any divorce case, case law generally dictates that the marriage had to last a minimum amount of time, a period of several years (5 years tends to the be minimum benchmark in Florida) before alimony is seriously considered by the court, except in extraordinary circumstances. And, again, if the future national jurisdiction of your spouse is in question, I think a state court would be reluctant to award him that.

Again, I want to reiterate that I think it would be worth the up-front investment to get a lawyer's take on the matter, but maybe there are others on the website who can offer more, as well as the other questions you had. Good luck.

Hi everyone,

I have a question.

My husband is here on a k3 visa. It is obvious things are not going to work out and we will be getting a divorce. We have NOT filed AOS.

What steps do i need to take. Since we have not filed AOS can I simply correspond with the embassy that has the approved i129f and i130 and ask that the i130 be withdrawn? Would i have to deal at all with USCIS in the U.S.?

In that case would he be able to stay in the U.S. for the duration of the K3 or would he be required to leave sooner?

And as far as divorce is concerened, would he have any legal options to claim alimony from me?

Thanks in advance.

[euronix 0]

This one I think you may want to get a lawyer's advice on who doubles in both immigration and family law. Many do practice in both areas. Generally, you could pay $250 or $350 for one hour of their time and they can give you the straight story. When I had an initial consult with an immigration lawyer prior to filing my I-130 and I-129F, he told me that with the I-130, once it was approved you were responsible for your spouse's support for a period of up to 2 years, even if the spouse left you. That's the Federal, not the state guidelines. But, when they are over on the K-3, I don't know if the same rule applies, because I'm not sure how quickly your soon-to-be-ex will be required to leave the country, if you divorce before the I-130 is approved.

I'm sorry - when I said "the I-130 is approved", I meant the AOS.

I ran accross this thread earlier which was closely related to my situation. http://www.visajourney.com/forums/index.ph...=divorce+k3+aos

in this thread a member mentioned that

"if you contact USCIS and request that the I-130 be withdrawn, yes, that will effectively cease the process of your petition. Your wife will be required to return to her country."

However, i cant seem to find out if the husband could stay for the duration of the k3 or not.

hmmmmmm.......

[euronix 0]

any input on this one??? Bump??

[diadromous mermaid 36]

The alien that formerly arrived in the USA on a K-3 will fall out of status 30 days after a divorce regardless of the date on his K3 visa.

[euronix 0]

The alien that formerly arrived in the USA on a K-3 will fall out of status 30 days after a divorce regardless of the date on his K3 visa.

Thanks for the input.

Im still curious about if canceling the i130 at the embassy or through uscis is what i need to do?

[euronix 0]

bump please

[diadromous mermaid 36]

I don't believe you need to *do* anything other than make certain that the divorce is finalised. That doesn't preclude you from informing the Service Centre over your jurisdiction that the divorce is underway, or even that you wish to withdraw the pending I-130.

Under Sec. 214.2, Special requirements for admission, extension, and maintenance of status you'll see that a K-3 alien must maintain status....

To be classified as a K-3 spouse as defined in section 101(a)(15)(k)(ii) of the Act, or the K-4 child of such alien defined in section 101(a)(15)(K)(iii) of the Act, the alien spouse must be the beneficiary of an immigrant visa petition filed by a U.S. citizen on Form I-130, Petition for Alien Relative, and the beneficiary of an approved petition for a K-3 nonimmigrant visa filed on Form I-129F. The petitions with supporting documents shall be filed by the petitioner with the director having administrative jurisdiction over the place where the petitioner is residing in the United States, or such other place as the Commissioner may designate.

See,

(8) Period of admission for K3/K-4 status. Aliens entering the United States as a K-3 shall be admitted for a period of 2 years. Aliens entering the United States as a K-4 shall be admitted for a period of 2 years or until that alien's 21st birthday, whichever sooner.

Note:

(11) Termination of K-3/K-4 status. The status of an alien admitted to the United States as a K-3/K-4 under section 101(a)(15)(K)(ii) or (iii) of the Act, shall be automatically terminated 30 days following the occurrence of any of the following:

(i) The denial or revocation of the Form I-130 filed on behalf of that alien;

(ii) The denial or revocation of the immigrant visa application filed by that alien;

(iii) The denial or revocation of the alien's application for adjustment of status to that of lawful permanent residence;

(iv) The K-3 spouse's divorce from the U.S. citizen becomes final;

(v) The marriage of an alien in K-4 status.

(vi) The denial of any of these petitions or applications to a K-3 also results in termination of a dependent K-4's status. For purposes of this section, there is no denial or revocation of a petition or application until the administrative appeal applicable to that application or petition has been exhausted.

From, http://www.uslawnet.com/Englishhome/Visas/KVisa/k3k4.htm

[euronix 0]

I don't believe you need to *do* anything other than make certain that the divorce is finalised. That doesn't preclude you from informing the Service Centre over your jurisdiction that the divorce is underway, or even that you wish to withdraw the pending I-130.

well,, from what i understand in my state it can take up to a full year for the divorce to be final.

i just want to be sure that if i withdraw the petition he will indeed have to leave within 30 days, for a couple of reasons. Of course he will be angry if i do this but without going into details,, he has been very abusive and i am very scared for my physical safety and what he might do to me if he were to remain in the country.

[himher 634]

The approved I130 is not at the embassy. I'm betting the I130 approval notice assumes that "the beneficiary is residing in the US", right? At any rate, you can't revoke an "approved" petition after your husband has already arrived in the US. You can only revoke a "pending" petition.

You don't have to do anything. Pursue your divorce, notify USCIS that your are pursuing a divorce, and do not file AOS. After that it won't make a difference what your husband (ex-husband after the divorce is final) does.

He's eligible to stay, since the I130 has been approved, until 30 days after the divorce is final. As to the question of alimony - that's up to the state court and since you are the applicant and he is the beneficiary and you DID fill out an I134 support affidavit?, my bet is that the court will (wrongfully but probably) award him support from you (temporary maintenance) until everything is final. Most non-alimony states typically award "temporary maintenance" to a spouse who cannot work from the spouse who can while a divorce is pending.

[pushbrk 13,073]

I don't believe you need to *do* anything other than make certain that the divorce is finalised. That doesn't preclude you from informing the Service Centre over your jurisdiction that the divorce is underway, or even that you wish to withdraw the pending I-130.

well,, from what i understand in my state it can take up to a full year for the divorce to be final.

i just want to be sure that if i withdraw the petition he will indeed have to leave within 30 days, for a couple of reasons. Of course he will be angry if i do this but without going into details,, he has been very abusive and i am very scared for my physical safety and what he might do to me if he were to remain in the country.

You don't always get what you want. He has a visa valid for multiple entries to the US for two years. His status is good and privileges intact until his I-94 expires or 30 days after the divorce is final, whichever comes first. So, you might as well plan within those parameters because there's not a thing you can do to change them.

[Old Dominion 26]

Yes, USCIS is out of the picture, so withdrawing your I-130 is of no use. As to the issue of alimony, that's why you will need to consult an attorney. I believe the first step in the process is to establish a legal separation, during which the question of alimony or support will be resolved for all time. His visa will remain valid until it expires and you have no way to change that.