Wanted Divorce

[marea 0]

Hey there one of my friends wanted to get divorce, is it possible that she could still file AOS with a status of divorcee? Any help would be very much appreciated.

[AbbynSheryl 0]

yes she can in my opinion

but wait for more responces from smart vjers

abby n sheryl

[DEDixon 39]

pretty much impossible. she will have to return to the RP.

[Minya's wife 25]

If she came over w/ a K-1, she cannot adjust status any other way, only by being married to the petitioner. She can file for divorce any time, that is an issue for the family courts...but she cannot apply to adjust her status once she's divorced. That only applies at the removal of conditions stage.

Abby, if you are not sure about an answer, please do not post an opinion regarding an immigration matter...it may serve to confuse the OP.

Edited September 17, 2009 by Minya's wife

[FrombeachParadise 0]

Hey there one of my friends wanted to get divorce, is it possible that she could still file AOS with a status of divorcee? Any help would be very much appreciated.

NO!!! her options are stays as illegal alien in US or rides on a plane back to Philippines...

[Dakine 26]

Abby, if you are not sure about an answer, please do not post an opinion regarding an immigration matter...it may serve to confuse the OP. AND OTHERS!

[Ban Hammer 13,491]

moved from pi regional to changes forum, where this thread will get a wider range of responses.

[marriedtomrg 141]

Found the following article on the subject...apparently it depends on where you live, and what the circumstances are.

K-1 VISA HOLDERS CAN ADJUST AFTER DIVORCE

Posted on:6/25/2009

By Robert L. Reeves and Nancy E. Miller

K-1 (fiancé) visa holders come to the United States full of hope. They are coming to marry the person they love and are looking forward to a new life in the United States. Sometimes, the marriage does not work out. Since the only way the non-citizen can adjust status is through the marriage to the K petitioner, the fiancé visa holder is left wondering what effect the divorce will have on their new life in this country.

The United States Citizenship and Immigration Services (USCIS) had long held that those who enter the United States on a K-1 (fiancé) visa can only adjust their status to that of permanent resident if their marriage is still intact at the time of the adjustment. Given how long it takes for adjustment applications to be adjudicated in some parts of the country, that can result in many K-1 visa holders being denied adjustment and having to return home. Those who live in the jurisdiction of the Ninth Circuit Court of Appeals (which includes California) can adjust their status based on their marriage, even after the marriage ends in divorce.

Two cases have addressed this issue. The first case was Choin v. Mukasey. Yelena Choin entered the United States on a K visa as the fiancee of U.S. citizen Albert Tapia. After they were married, Choin filed an application to adjust her status to that of a lawful permanent resident. The application languished with the Immigration & Naturalization Service for two years. Just before the end of that two year period, Choin and Tapia were divorced. INS then denied Choin’s application for adjustment. Homeland Security placed her in removal proceedings. The Immigration Judge and the Board of Immigration Appeals denied her application for adjustment of status and ordered her removed. They all agreed that, as a result of her divorce, she was not eligible to adjust her status. They said that the relevant adjustment statute required that the couple still be married at the time of the initial grant of adjustment of status.

The Ninth Circuit said the case turned on the meaning of the term “as a result of the marriage of the non-immigrant”. The Court said that the language of the statute is ambiguous. It could mean that the marriage must exist on the date of adjustment or it could mean that the application must be based on the fact of the marriage. In further analyzing the relevant phrase, the Court acknowledged that the purpose of the Immigration Marriage Fraud Act of 1986 (which created the restriction on adjustment for K visa recipients) was to deter immigration-related marriage fraud. It held that nothing in the statute imposed a duration of marriage requirement. Rather, it found that the statute imposed a requirement that the marriage be entered into in good faith. Therefore, as long as the K visa recipient timely married the petitioner in good faith and applied for adjustment based on that marriage, the duration of the marriage was irrelevant. Indeed, the parties did not need to still be married at the time of adjudication of the adjustment application.

In Strokous v. Mukasey, Natalyia Stokous came to the U.S. on a K-1 visa and married her petitioner Borus Bengel. They were divorced before she filed her application for permanent residence. USCIS denied her application for adjustment and the immigration judge found her to be removable. In relying upon the rationale in Choin, the Strokous court said that the fact that Strokous had divorced her husband prior to filing for adjustment was not a valid reason to deny her application for adjustment. They held that, because she had married her K-1 petitioner, she was eligible to adjust her status on the basis of that marriage even though she was divorced at the time she filed her adjustment application.

Divorce is difficult enough. Thankfully, in the Ninth Circuit, it may not mean the end of life in the United States for those who entered on a K-1 visa.

[DEDixon 39]

Found the following article on the subject...apparently it depends on where you live, and what the circumstances are.

still, it is so close to impossible may as well call it impossible.

no AOS means she has not been in the US very long or she has been and is currently out of status so rarely does anyone here on K-1 have the grounds to divorce before AOS and stay here legally. the purpose of her coming here is no longer valid basically so she simply books a ticket home.

Edited September 17, 2009 by DEDixon

[Zen Den 18]

Found the following article on the subject...apparently it depends on where you live, and what the circumstances are.

still, it is so close to impossible may as well call it impossible.

no AOS means she has not been in the US very long or she has been and is currently out of status so rarely does anyone here on K-1 have the grounds to divorce before AOS and stay here legally. the purpose of her coming here is no longer valid basically so she simply books a ticket home.

the only way she can apply for AOS on her own is if she's an abused spouse. if she's able to prove this, she's eligible for AOS according to the VAWA provisions. this will take a lot of docs/reports proving the claim so just a claim without supporting evidence will not be enough.

[johnnybgood265 3]

A friends divorce ?? are you sure. I hope they can work it out and avoid the divorce.

[usaborn1111 0]

Hey there one of my friends wanted to get divorce, is it possible that she could still file AOS with a status of divorcee? Any help would be very much appreciated.

Don't count on doing her own AOS....it will cost her lots of Atty fees to go to court and I think both of those were on cases that took longer than they were suppose to process. I talk to an atty for myself on another issue that I'm dealing with and he said he needs 20,000$ up front to take to court and that is only if the gov't does not appeal. ICE will also go over every detail to make sure no fraud was involved. Tell her to see if she can work it out and last til the 2 yrs go by. Is there any kids involved???

[JimVaPhuong 4,863]

Found the following article on the subject...apparently it depends on where you live, and what the circumstances are.

K-1 VISA HOLDERS CAN ADJUST AFTER DIVORCE

Posted on:6/25/2009

By Robert L. Reeves and Nancy E. Miller

K-1 (fiancé) visa holders come to the United States full of hope. They are coming to marry the person they love and are looking forward to a new life in the United States. Sometimes, the marriage does not work out. Since the only way the non-citizen can adjust status is through the marriage to the K petitioner, the fiancé visa holder is left wondering what effect the divorce will have on their new life in this country.

The United States Citizenship and Immigration Services (USCIS) had long held that those who enter the United States on a K-1 (fiancé) visa can only adjust their status to that of permanent resident if their marriage is still intact at the time of the adjustment. Given how long it takes for adjustment applications to be adjudicated in some parts of the country, that can result in many K-1 visa holders being denied adjustment and having to return home. Those who live in the jurisdiction of the Ninth Circuit Court of Appeals (which includes California) can adjust their status based on their marriage, even after the marriage ends in divorce.

Two cases have addressed this issue. The first case was Choin v. Mukasey. Yelena Choin entered the United States on a K visa as the fiancee of U.S. citizen Albert Tapia. After they were married, Choin filed an application to adjust her status to that of a lawful permanent resident. The application languished with the Immigration & Naturalization Service for two years. Just before the end of that two year period, Choin and Tapia were divorced. INS then denied Choin’s application for adjustment. Homeland Security placed her in removal proceedings. The Immigration Judge and the Board of Immigration Appeals denied her application for adjustment of status and ordered her removed. They all agreed that, as a result of her divorce, she was not eligible to adjust her status. They said that the relevant adjustment statute required that the couple still be married at the time of the initial grant of adjustment of status.

The Ninth Circuit said the case turned on the meaning of the term “as a result of the marriage of the non-immigrant”. The Court said that the language of the statute is ambiguous. It could mean that the marriage must exist on the date of adjustment or it could mean that the application must be based on the fact of the marriage. In further analyzing the relevant phrase, the Court acknowledged that the purpose of the Immigration Marriage Fraud Act of 1986 (which created the restriction on adjustment for K visa recipients) was to deter immigration-related marriage fraud. It held that nothing in the statute imposed a duration of marriage requirement. Rather, it found that the statute imposed a requirement that the marriage be entered into in good faith. Therefore, as long as the K visa recipient timely married the petitioner in good faith and applied for adjustment based on that marriage, the duration of the marriage was irrelevant. Indeed, the parties did not need to still be married at the time of adjudication of the adjustment application.

In Strokous v. Mukasey, Natalyia Stokous came to the U.S. on a K-1 visa and married her petitioner Borus Bengel. They were divorced before she filed her application for permanent residence. USCIS denied her application for adjustment and the immigration judge found her to be removable. In relying upon the rationale in Choin, the Strokous court said that the fact that Strokous had divorced her husband prior to filing for adjustment was not a valid reason to deny her application for adjustment. They held that, because she had married her K-1 petitioner, she was eligible to adjust her status on the basis of that marriage even though she was divorced at the time she filed her adjustment application.

Divorce is difficult enough. Thankfully, in the Ninth Circuit, it may not mean the end of life in the United States for those who entered on a K-1 visa.

You'll notice that USCIS has not changed their policies as a result of the Ninth Circuit Court decision. The Ninth Circuit Court has a long history of legislating from the bench. They interpret laws the way they think they should have been written, rather than as they were intended (regardless of what they say). As a consequence, the Ninth Circuit Court has had it's decisions reversed by the US Supreme Court an average of 10.78 times per term over the past 50 years - by far, the highest reversal rate of any federal appeals court.

If the OP's friend has a stack of cash, or a wealthy benefactor, or possibly an attorney who thinks there is enough publicity in the case to take it pro bono, then by all means - go to court! If she makes it all the way up to the Ninth Circuit Court then she's got a shot - at least until the US Supreme Court reverses the decision.

[NutMagnet 2]

Have you ever heard of a VAWA case being denied, either for alleged abuse or for Cancellation of Removal?

Why does she want to file for divorce, please explain in full detail

Found the following article on the subject...apparently it depends on where you live, and what the circumstances are.

still, it is so close to impossible may as well call it impossible.

no AOS means she has not been in the US very long or she has been and is currently out of status so rarely does anyone here on K-1 have the grounds to divorce before AOS and stay here legally. the purpose of her coming here is no longer valid basically so she simply books a ticket home.

the only way she can apply for AOS on her own is if she's an abused spouse. if she's able to prove this, she's eligible for AOS according to the VAWA provisions. this will take a lot of docs/reports proving the claim so just a claim without supporting evidence will not be enough.

Edited September 19, 2009 by NutMagnet