Complicated case

[letsgoheat 0]

H to all,

My friend's spouse first came to the U.S. on a K-3 visa 5 yrs ago sponsored by someone else but their marriage didn't work so they divorced and my friend's spouse never adjust her status.

Is she eligible to adjust her status with her new husband?

any similar case?

[belovedbyme 0]

What I got from US embassy website:

K3 or K4 status shall be automatically terminated upon (a) the denial or revocation of the Form I-130 Petition on behalf of the alien, (B) the denial or revocation of the adjustment of status application, © the termination of the marriage between the K3 spouse and the U.S. citizen petitioner, or (d) the marriage of an alien in K4 status.

http://manila.usembassy.gov/wwwfk3en.pdf

How long she been married before they divorced? Pusbrk can answer this question I think..He is more knowleadgeable.

[Kez/JWolf 6]

H to all,

My friend's spouse first came to the U.S. on a K-3 visa 5 yrs ago sponsored by someone else but their marriage didn't work so they divorced and my friend's spouse never adjust her status.

Is she eligible to adjust her status with her new husband?

any similar case?

Her new husband would need to file a I-130 along with the AOS. see guide http://www.visajourney.com/forums/index.ph...page=i130guide2

[letsgoheat 0]

What I got from US embassy website:

K3 or K4 status shall be automatically terminated upon (a) the denial or revocation of the Form I-130 Petition on behalf of the alien, (B) the denial or revocation of the adjustment of status application, © the termination of the marriage between the K3 spouse and the U.S. citizen petitioner, or (d) the marriage of an alien in K4 status.

http://manila.usembassy.gov/wwwfk3en.pdf

How long she been married before they divorced? Pusbrk can answer this question I think..He is more knowleadgeable.

3 years before they divorced

[Krikit 1,164]

Moving this from AOS to a more appropriate forum..... Effects of Major Changes.

[desert_fox 32]

A K visa holder can only adjust status based upon marriage to the original petitioner.

[Chica Yeyé 41]

A K visa holder can only adjust status based upon marriage to the original petitioner.

Exactly what I thought --- I asume the new husband would have to file something else; but I hope someone with more knowledge chips in.

[pushbrk 12,898]

H to all,

My friend's spouse first came to the U.S. on a K-3 visa 5 yrs ago sponsored by someone else but their marriage didn't work so they divorced and my friend's spouse never adjust her status.

Is she eligible to adjust her status with her new husband?

any similar case?

Her new husband would need to file a I-130 along with the AOS. see guide http://www.visajourney.com/forums/index.ph...page=i130guide2

That sounds like it would work but I'd consult a qualified immigration attorney first.

[desert_fox 32]

H to all,

My friend's spouse first came to the U.S. on a K-3 visa 5 yrs ago sponsored by someone else but their marriage didn't work so they divorced and my friend's spouse never adjust her status.

Is she eligible to adjust her status with her new husband?

any similar case?

Her new husband would need to file a I-130 along with the AOS. see guide http://www.visajourney.com/forums/index.ph...page=i130guide2

That sounds like it would work but I'd consult a qualified immigration attorney first.

Won't happen. If she never adjusted status based upon marriage with the frirst husband, she cannot adjust status with a new hubby. This is true for K-1 and K-3. He can file the I-130 for the new spouse, but the interview will be in the foreign country. Dont asccumulate illegal presencde or you will received a ban for re-entry without a waiver.

[pushbrk 12,898]

H to all,

My friend's spouse first came to the U.S. on a K-3 visa 5 yrs ago sponsored by someone else but their marriage didn't work so they divorced and my friend's spouse never adjust her status.

Is she eligible to adjust her status with her new husband?

any similar case?

Her new husband would need to file a I-130 along with the AOS. see guide http://www.visajourney.com/forums/index.ph...page=i130guide2

That sounds like it would work but I'd consult a qualified immigration attorney first.

Won't happen. If she never adjusted status based upon marriage with the frirst husband, she cannot adjust status with a new hubby. This is true for K-1 and K-3. He can file the I-130 for the new spouse, but the interview will be in the foreign country. Dont asccumulate illegal presencde or you will received a ban for re-entry without a waiver.

I think you're right because something tells me that was the outcome of a previous discussion in this forum. That's why I recommended legal consultation.

[desert_fox 32]

Think so Push...

Here is the law.

--------------------------------------------------------

c) Ineligible aliens . The following categories of aliens are ineligible to apply for adjustment of status to that of a lawful permanent resident alien under section 245 of the Act: (Added 10/1/94; 59 FR 51091 )

(1) Any nonpreference alien who is seeking or engaging in gainful employment in the United States who is not the beneficiary of a valid individual or blanket labor certification issued by the Secretary of Labor or who is not exempt from certification requirements under § 212.8(B) of this chapter;

(2) Except for an alien who is applying for residence under the provisions of section 133 of the Immigration Act of 1990, any alien who has or had the status of an exchange visitor under section 101(a)(15)(J) of the Act and who is subject to the foreign residence requirement of section 212(e) of the Act, unless the alien has complied with the foreign residence requirement or has been granted a waiver of that requirement, under that section. An alien who has been granted a waiver under section 212(e)(iii) of the Act based on a request by a State Department of Health (or its equivalent) under Pub. L. 103-416 shall be ineligible to apply for adjustment of status under section 245 of the Act if the terms and conditions specified in section 214(k) of the Act and Sec. 212.7©(9) of this chapter have not been met; (Amended 5/18/95; 60 FR 26676 )

(3) Any alien who has nonimmigrant status under paragraph (15)(A), (15)(E), or (15)(G) of section 101(a) of the Act, or has an occupational status which would, if the alien were seeking admission to the United States, entitle the alien to nonimmigrant status under those paragraphs, unless the alien first executes and submits the written waiver required by section 247(B) of the Act and part 247 of this chapter; (Amended effective 4/1/97; 62 FR 10312 )

(4) Any alien who claims immediate relative status under section 201(B) or preference status under sections 203(a) or 203(B) of the Act, unless the applicant is the beneficiary of a valid unexpired visa petition filed in accordance with Part 204 of this chapter; (Amended effective 4/1/97; 62 FR 10312 )

(5) Any alien who is already an alien lawfully admitted to the United States for permanent residence on a conditional basis pursuant to section 216 or 216A of the Act, regardless of any other quota or non-quota immigrant visa classification for which the alien may otherwise be eligible; (Amended effective 4/1/97; 62 FR 10312 )

(6) Any alien admitted to the United States as a nonimmigrant defined in section 101(a)(15)(K) of the Act, unless: (Revised 8/14/01; 66 FR 42587 ) (Amended effective 4/1/97; 62 FR 10312 )

(i) In the case of a K-1 fiance(e) under section 101(a)(15)(K)(i) of the Act or the K-2 child of a fiance(e) under section 101(a)(15)(K)(iii) of the Act, the alien is applying for adjustment of status based upon the marriage of the K-1 fiance(e) which was contracted within 90 days of entry with the United States citizen who filed a petition on behalf of the K-1 fiance(e) pursuant to § 214.2(k) of this chapter;

(ii) In the case of a K-3 spouse under section 101(a)(15)(K)(ii) of the Act or the K-4 child of a spouse under section 101(a)(15)(K)(iii) of the Act, the alien is applying for adjustment of status based upon the marriage of the K-3 spouse to the United States citizen who filed a petition on behalf of the K-3 spouse pursuant to § 214.2(k) of this chapter;

[letsgoheat 0]

wow, this case is really complicated,

hopefully we cant get some more info about this case, one more thing they have a baby here already thats why returning to the country of her origin is not her option.

thanks a lot guys

[pushbrk 12,898]

wow, this case is really complicated,

hopefully we cant get some more info about this case, one more thing they have a baby here already thats why returning to the country of her origin is not her option.

thanks a lot guys

Sometimes our only option is not what we want. She can see an attorney but the law indicates the K3 spouse adjusts based on the marriage to the original petitioner and is ineligible to adjust based on marriage to any other USC. There are all sorts of advocacy groups working in behalf of foreign out of status mothers with USC children. Seeking out an attorney or one of those groups for aid would be the only option I see and that might not work either.

[himher 634]

Case law as pointed out indicates only that she is not eligible to adjust status based on her old visa. She IS eligible if a new I130 petition is filed (don't leave out "classes of aliens eligible). They will be treated as a legal arrival / followed by overstay and marriage to USC. Requires new I130, new I485, and probably an I485 supplement A with a $1000 penalty payment (not sure about the exact requirements of the 3rd but that is typical for marriage to USC after a significant overstay or beneficiary working illegally in the US after entry). Eligibility for status adjustment is based on the new I130 petition and marriage to the petitioner. After that it is a wait and see game - the case will stand or fall on its own merits. Interview will be at the local US office with jurisdiction over their residence (not in the beneficiary's country, where does that come from?). You should probably advise your friend not to leave the US for any reason until the case is processed.

Disclaimer: This process is based on a known 2007 case in Houston of a 4-year overstay and subsequent marriage to USC. Initial entry was on border pass for "shopping". Beneficiary entered, worked illegally during the (4) year period, and never looked back. Case was approved. This may not be completely applicable to the particular case above. Couple in referenced case used the "Johnny Cochran" of immigration attorneys aka the best one they could locate and it is advisable for couples with "sticky cases" to do the same lol

H to all,

My friend's spouse first came to the U.S. on a K-3 visa 5 yrs ago sponsored by someone else but their marriage didn't work so they divorced and my friend's spouse never adjust her status.

Is she eligible to adjust her status with her new husband?

any similar case?

Her new husband would need to file a I-130 along with the AOS. see guide http://www.visajourney.com/forums/index.ph...page=i130guide2

That sounds like it would work but I'd consult a qualified immigration attorney first.

Won't happen. If she never adjusted status based upon marriage with the frirst husband, she cannot adjust status with a new hubby. This is true for K-1 and K-3. He can file the I-130 for the new spouse, but the interview will be in the foreign country. Dont asccumulate illegal presencde or you will received a ban for re-entry without a waiver.

[milimelo 4,481]

But your case study does NOT involve someone with a K-3 visa but someone who was on (I presume) B1/B2 tourist visa - for "shopping".

OP, lawyer up and research a lot - no leaving of the country before the issue is resolved.

Case law as pointed out indicates only that she is not eligible to adjust status based on her old visa. She IS eligible if a new I130 petition is filed (don't leave out "classes of aliens eligible). They will be treated as a legal arrival / followed by overstay and marriage to USC. Requires new I130, new I485, and probably an I485 supplement A with a $1000 penalty payment (not sure about the exact requirements of the 3rd but that is typical for marriage to USC after a significant overstay or beneficiary working illegally in the US after entry). Eligibility for status adjustment is based on the new I130 petition and marriage to the petitioner. After that it is a wait and see game - the case will stand or fall on its own merits. Interview will be at the local US office with jurisdiction over their residence (not in the beneficiary's country, where does that come from?). You should probably advise your friend not to leave the US for any reason until the case is processed.

Disclaimer: This process is based on a known 2007 case in Houston of a 4-year overstay and subsequent marriage to USC. Initial entry was on border pass for "shopping". Beneficiary entered, worked illegally during the (4) year period, and never looked back. Case was approved. This may not be completely applicable to the particular case above. Couple in referenced case used the "Johnny Cochran" of immigration attorneys aka the best one they could locate and it is advisable for couples with "sticky cases" to do the same lol

H to all,

My friend's spouse first came to the U.S. on a K-3 visa 5 yrs ago sponsored by someone else but their marriage didn't work so they divorced and my friend's spouse never adjust her status.

Is she eligible to adjust her status with her new husband?

any similar case?

Her new husband would need to file a I-130 along with the AOS. see guide http://www.visajourney.com/forums/index.ph...page=i130guide2

That sounds like it would work but I'd consult a qualified immigration attorney first.

Won't happen. If she never adjusted status based upon marriage with the frirst husband, she cannot adjust status with a new hubby. This is true for K-1 and K-3. He can file the I-130 for the new spouse, but the interview will be in the foreign country. Dont asccumulate illegal presencde or you will received a ban for re-entry without a waiver.