Sending wife back to Philippines

[JTandMaria 0]

My wife entered the US on a K-1 visa from her first husband in August, 2005. They married within 90 days and filed for AOS soon thereafter. A couple of months after this he asked her to leave because she refused to be his "servant". He would constantly threatened to "send her back" along with other forms of emotional abuse. She went to Seattle to live with her brother, until we met and she moved in with me. He filed for divorce and this was finalized just over 1 year after they were married. All the while her first AOS was pending, presumably because she moved so much. We married in June of 2008 and filed her 2nd AOS on Sep 24, 2008 (first one still pending). We included a cover letter explaining the detailed circumstances of her situation as I have explained them here. We had an interview in Feb 2009 during which we were told that they did not have her permanant file and that we would have to wait for that to arrive before any decision could be made. She received another appointment letter sometime after this which we thought was for our second interview. Instead, it was for her first AOS petition with her first husband. Needless to say this interview was fruitless as well.

On July 14, 2009 we received two denial letters for each of the I-485's, both dated July 10, 2009. We have since consulted 3 separate immigration attorneys and each has advised that she must return to the Philippines and begin the process of legal immigration all over again. The law is apparently clear about this in that she cannot adjust status if she has divorced and remarried while an I-485 is pending. In other words, I did not sponsor her visa so she cannot AOS based on our marriage. The attorneys however did not agree on when she would be considered to begin acruing unlawfull status, nor do the people on the helpline at USCIS. We have heard everything from "when she applied for her first AOS (Feb 2006)" to "when she divorced (Sep 2006)", to "when we filed for AOS (Sep 2008)" to "when the denial letters are dated (July 10, 2009)".

We don't know what to believe and since each of these dates bring about vastly different consequences as far as 3 yr, 10 yr or lifetime bans go, we would like to know. I still hope to find some way to adjust her status without leaving the country, but we are running out of options. If they consider her unlawful staus to begin when we first filed our AOS then it will be 1 year as of Sep. 24, so we have booked tickets to Manila on the Sep 23 to avoid a possible 10 yr ban scenario. Can anyone offer any hope for handling this differently?

[canadian_wife 1,822]

I am sorry about your situation. With 2 denied AOS petition is highly doubtful there is a legal way for her to adjust status. Legally, entering on a K-1 you can only adjust status based on the marriage to the petitioner. I'm sorry, but she will need to go back to the Philippines.

Unless your wife ever claimed to be a US citizen, I doubt she has a lifetime ban. I have no idea of when she began to accure illegal status so I cannot help you there.

Good luck.

[Zen Den 18]

My wife entered the US on a K-1 visa from her first husband in August, 2005. They married within 90 days and filed for AOS soon thereafter. A couple of months after this he asked her to leave because she refused to be his "servant". He would constantly threatened to "send her back" along with other forms of emotional abuse. She went to Seattle to live with her brother, until we met and she moved in with me. He filed for divorce and this was finalized just over 1 year after they were married. All the while her first AOS was pending, presumably because she moved so much. We married in June of 2008 and filed her 2nd AOS on Sep 24, 2008 (first one still pending). We included a cover letter explaining the detailed circumstances of her situation as I have explained them here. We had an interview in Feb 2009 during which we were told that they did not have her permanant file and that we would have to wait for that to arrive before any decision could be made. She received another appointment letter sometime after this which we thought was for our second interview. Instead, it was for her first AOS petition with her first husband. Needless to say this interview was fruitless as well.

On July 14, 2009 we received two denial letters for each of the I-485's, both dated July 10, 2009. We have since consulted 3 separate immigration attorneys and each has advised that she must return to the Philippines and begin the process of legal immigration all over again. The law is apparently clear about this in that she cannot adjust status if she has divorced and remarried while an I-485 is pending. In other words, I did not sponsor her visa so she cannot AOS based on our marriage. The attorneys however did not agree on when she would be considered to begin acruing unlawfull status, nor do the people on the helpline at USCIS. We have heard everything from "when she applied for her first AOS (Feb 2006)" to "when she divorced (Sep 2006)", to "when we filed for AOS (Sep 2008)" to "when the denial letters are dated (July 10, 2009)".

We don't know what to believe and since each of these dates bring about vastly different consequences as far as 3 yr, 10 yr or lifetime bans go, we would like to know. I still hope to find some way to adjust her status without leaving the country, but we are running out of options. If they consider her unlawful staus to begin when we first filed our AOS then it will be 1 year as of Sep. 24, so we have booked tickets to Manila on the Sep 23 to avoid a possible 10 yr ban scenario. Can anyone offer any hope for handling this differently?

the denials were correct... the first AOS was simply denied because your wife and her ex divorced while the AOS was pending:

http://www.visajourney.com/forums/index.ph...s-immigration-c

Q: We filed for adjustment of status. Must I remain married to my spouse until the I-485 is approved?

A: Yes. Generally speaking, in cases where a spouse was the petitioner in an I-130 application, if the marriage terminates by divorce before the adjustment of status is granted, the beneficiary will not be eligible for permanent resident status through this relationship.

...the second one was denied also because you are not the original petitioner through whom only she can apply for AOS:

Q: My US citizen spouse and I divorced before the I-485 adjustment of status application was approved. Am I still eligible for adjustment of status based on my prior marriage to the US citizen?

A: As a general rule, the regulations require that the marriage be viable. If the marriage terminates by divorce or annulment before the adjustment of status is granted, the beneficiary will not be eligible for permanent resident status through this relationship. It is strongly advised that an alien consult an immigration specialist if faced with this dilemma. If the beneficiary began the process as a K visa holder, then adjustment will not be possible other than through the initial US citizen petitioner. An exception exists if an alien was subject to abuse and qualified under the VAWA provisions.

but i think there might have been hope for her if after divorcing her ex she followed up on her AOS as an abused wife (through VAWA) as stated above. you might want to ask your lawyer if this still possible since she already remarried before declaring that she was abused. if there is, she might be able to apply for AOS on her own.

as to when exactly your wife started accruing unlawful status, the USCIS can say it was when she filed for divorce, which made the AOS application automatically denied (afterwhich she could've filed for AOS based on VAWA but which she didn't), but they weren't able to act (deny the application) until july of this year, meaning they didn't do their job, which makes start of the "unlawful status " technically after the denial date.

maybe she can still file through VAWA so she doesn't have to leave the US, i hope your lawyers can look into the government's policy on remarrying before declaring abuse by first spouse through VAWA

[emt103c 10]

Contact Heather Poole:http://www.humanrightsattorney.com/

It is likely that it is too late to claim abuse. Had she applied for relief earlier, she could have had success, however, after a subsequent marriage, WITHOUT applying for a VAWA waiver, it will look like she is just trying any way possible to get PR status. . .doesn't matter that it's not true. . . If anyone can fix it, the attorney listed above can.

It is not possible to adjust from k1 status on the basis of a marriage to a USC who is not the original petitioner. . .but she could have been granted PR on the basis of the first petition, had she applied earlier.

[RUJEN 140]

You are not alone.......

I had to send my wife back to the Philippines last October for the same stuff.

She came over on a K-3. On her first night here, her husband told her he was already married to an American woman and she was to be his SECOND wife. She went to stay with her sister and that is when I met her, she got an annulment from him and we married after that. After the wedding, we submitted the papers to USCIS and went through all the hoops and was finally told they denied the I-485, and she had 30 days to "voluntary depart" American soil.

We started the process again, and are at the NVC stage now, We think her interview will be near the end of the year, and then we will know if she is placed on a ban for "overstay"

From what I can gather, the "overstay" started the day of her annulment, and ended the day USCIS received her I-485. In our case that was exactly 200 days which will put her on a 3 year ban.

rujan

[emt103c 10]

You are not alone.......

I had to send my wife back to the Philippines last October for the same stuff.

She came over on a K-3. On her first night here, her husband told her he was already married to an American woman and she was to be his SECOND wife. She went to stay with her sister and that is when I met her, she got an annulment from him and we married after that. After the wedding, we submitted the papers to USCIS and went through all the hoops and was finally told they denied the I-485, and she had 30 days to "voluntary depart" American soil.

We started the process again, and are at the NVC stage now, We think her interview will be near the end of the year, and then we will know if she is placed on a ban for "overstay"

From what I can gather, the "overstay" started the day of her annulment, and ended the day USCIS received her I-485. In our case that was exactly 200 days which will put her on a 3 year ban.

rujan

Have you consulted with an attorney about this yet?? Is this what they told you?

[JTandMaria 0]

You are not alone.......

I had to send my wife back to the Philippines last October for the same stuff.

She came over on a K-3. On her first night here, her husband told her he was already married to an American woman and she was to be his SECOND wife. She went to stay with her sister and that is when I met her, she got an annulment from him and we married after that. After the wedding, we submitted the papers to USCIS and went through all the hoops and was finally told they denied the I-485, and she had 30 days to "voluntary depart" American soil.

We started the process again, and are at the NVC stage now, We think her interview will be near the end of the year, and then we will know if she is placed on a ban for "overstay"

From what I can gather, the "overstay" started the day of her annulment, and ended the day USCIS received her I-485. In our case that was exactly 200 days which will put her on a 3 year ban.

rujan

.

I was definitely told by 3 lawyers that she has 180 day to depart before a ban is even an issue. USCIS however, told me 30 and 90 days on 2 separate calls. They don't seem to be trustworthy on complex issues like this. Irregardless we are leaving well within 90 days of the denials and just within 360 days of our I-485 filing. What we are concerned about is when they will say they began to consider her as unlawfully present. If it began the day the finally denied her AOS then we should be okay, as far as a ban goes anyway. I don't think we will know for sure until the final interview in Manila which should be a year or so after I reapply for an I-130.

Good luck with your case. It does sound very similar to ours, although what your wifes first husband did to her is completely illegal. I would like to keep in touch and follow your progress if you don't mind. Would you be interested in this?

[RUJEN 140]

Have you consulted with an attorney about this yet?? Is this what they told you?

I had an attorney since late 2004 when we first met.

He helped with the annulment, our marriage, I-130, I-485, work authorization cards ( 3 of them ) and finally when she was sent home, the attorney and I met, talked for quite a while, I wrote him a big fat check for the up coming help....... he then moved on, quit his attorney business and moved on...... I learned this from my congressman, who is also helping me on this case. So right now, I don't have much faith in attorneys any more......

rujan

[RUJEN 140]

.

I would like to keep in touch and follow your progress if you don't mind. Would you be interested in this?

sure, PM me whenever you want, I will help any way I can......

rujan

[MikenKyhen 0]

Have you consulted with an attorney about this yet?? Is this what they told you?

I had an attorney since late 2004 when we first met.

He helped with the annulment, our marriage, I-130, I-485, work authorization cards ( 3 of them ) and finally when she was sent home, the attorney and I met, talked for quite a while, I wrote him a big fat check for the up coming help....... he then moved on, quit his attorney business and moved on...... I learned this from my congressman, who is also helping me on this case. So right now, I don't have much faith in attorneys any more......

rujan

Wow..What a kick in the ####. I don't blame you. It's damn hard to find a competant attorney who genuinely gives a rats #### about you and how his decisions could ultimately affect your life. Good luck brother.

[Jasman0717 9]

You should stick with an attorney's advise in this situation. Unless someone has specifically experienced this situation here on JV I don't think you will be able to draw a proper answer. Good luck

[TBoneTX 45,304]

You should stick with an attorney's advise in this situation. Unless someone has specifically experienced this situation here on JV I don't think you will be able to draw a proper answer.

Agreed. You can also visit http://www.fosterquan.com and sign up for their e-mail or phone consultation (VERY reasonable). I have no connection with this firm (largest immigration-law firm in Houston) except positive interaction that went far beyond what I'd paid for.

[RUJEN 140]

Wow..What a kick in the ####. I don't blame you. It's damn hard to find a competant attorney who genuinely gives a rats #### about you and how his decisions could ultimately affect your life. Good luck brother.

Yeah, we been kicked in the ### a few times already, but what to heck, we will win in the end, may take a while but sooner or later they have to run out of hoops for us to jump through. One saving grace we have right now is my congressman, since I talked to his staff, they have bent over backwards for my wife and myself. I can't say enough good about his staff.

rujan