Divorce during AOS process

[junglejao 0]

My husband and I are getting a divorce. The decision was mine, and I would like for the process to be amicable. He is a decent person- just not such a great husband.

He entered on a K1 in March of 2008. We were married and filed for AOS within 3 months. We were interviewed for the first time in January of 2009, and then heard nothing for months. After many inquiries on our part, and finally going to our local congresswoman, we were called in for a second interview in November 2009. They told us at the conclusion of that interview that they believed that our relationship was valid, but they still needed to wait on one final check. Since then, nothing. In other words, he has not yet received his green card.

I do not want to force my husband out of the country, but I do not want to put myself in any sort of legal jeopardy for his sake. He would like to stay here for as long as he can, but does not want or intend to stay illegally.

So the first question is, what is my legal obligation? Do I need to advise USCIS of the divorce? If so, would I do that when the papers are filed, or when the divorce is final? Do I also need to send notice of canceling his sponsorship, or would that be automatically inferred from the notice of divorce?

Next question is, what does my husband need to do to remain here legally for as long as possible? We both know he cannot stay indefinitely and that once USCIS knows we are no longer married his visa will no longer be valid, but we're just wondering if he has some time to wrap things up and make some money before returning to his country. How would the process work for him once I (presumably) informed USCIS of the intent/finality of the divorce? Are there some sort of proceedings and/or lee time before he definitely has to leave, or is it immediate?

Any advice would be appreciated. Thanks,

Jennifer

Edited July 16, 2010 by junglejao

[Bobby+Umit 161]

If you divorce prior to the AOS being completed, he will have no way to AOS (since he is no longer married to an USC).

He will have to leave the US, since he will have no status (K-1 entry allows only a 90 day I-94) and also - he will not be able to make some money -since he will not have an EAD/GC.

Best thing is to finish the divorce, send him home, pull your 864.

[junglejao 0]

Yes, I understand all of that. I am simply trying to determine WHEN I need to advise USCIS (upon filing the papers or upon the divorce being final), and based on that WHEN he would no longer have legal status and need to leave. I'm asking if he has a couple of months while the divorce is in process, or if he is automatically illegal (and his EAD invalid) upon the FILING of those papers. And at what point he would be considered overstaying.

Edited July 16, 2010 by junglejao

[payxibka 10,047]

Yes, I understand all of that. I am simply trying to determine WHEN I need to advise USCIS (upon filing the papers or upon the divorce being final), and based on that WHEN he would no longer have legal status and need to leave. I'm asking if he has a couple of months while the divorce is in process, or if he is automatically illegal (and his EAD invalid) upon the FILING of those papers. And at what point he would be considered overstaying.

The moment the I-485 is denied or the USCIS is made aware that his application is no longer valid... He will have I believe 30 days to leave the country....

All interim benefits he is enjoying (EAD) are immediately invalid when the I-485 is no longer valid

Edited July 16, 2010 by payxibka

[VanessaTony 3,567]

first. Contact USCIS and withdraw the I-864 which he needs to AOS. You don't need to be in the middle of divorce for that.

Then (or during, or before) start divorce proceedings. USCIS doesn't need to know you're divorced, they just need to know you're no longer sponsoring the I-864.

Once they get that notice he should get a notice saying the application (AOS) is denied based on your withdrawal and typically give him 30 days to leave the country. Best if the divorce is final before then (just 'cause it's easier to get stuff signed but it's not NEEDED) BUT if his AOS gets approved before you notify USCIS of the withdrawal of the I-864, then you're on the hook to support him financially etc.

Edited July 16, 2010 by Vanessa&Tony

[JimVaPhuong 4,863]

If his AOS happens to be approved before you manage to get the ball rolling on the divorce then you're going to be stuck with the financial obligations of the I-864. You've been married more than two years, so he'll get a 10 year green card. He won't have to petition to remove conditions, so the divorce would have no effect on his future status.

You aren't legally obligated to notify USCIS about the divorce, but if you want to avoid the financial liability of the I-864 then you should do as Vanessa&Tony advises and withdraw it as soon as possible. That will kill the AOS petition. There will be no path for him to adjust status and remain in the US after that, unless he wants to spend years and a truckload of cash in legal fees, but let's not even go there.

[BRIAN AND ISA 0]

Just wanted to say that we are sorry to hear about you guys getting divorced.

[MRStee 19]

Just wanted to say that we are sorry to hear about you guys getting divorced.

Likewise

[Krikit 1,165]

Moving from AOS to Effects of Major Changes.

[Laveau 67]

If his AOS happens to be approved before you manage to get the ball rolling on the divorce then you're going to be stuck with the financial obligations of the I-864. You've been married more than two years, so he'll get a 10 year green card. He won't have to petition to remove conditions, so the divorce would have no effect on his future status.

You aren't legally obligated to notify USCIS about the divorce, but if you want to avoid the financial liability of the I-864 then you should do as Vanessa&Tony advises and withdraw it as soon as possible. That will kill the AOS petition. There will be no path for him to adjust status and remain in the US after that, unless he wants to spend years and a truckload of cash in legal fees, but let's not even go there.

Just emphasizing what JimVaPhuong about being stuck w/financial obligations. Can someone show her for how long she will be "on the hook" if her husband receives his gc? Somke people think that because of a divorce they are no longer responsible for the terms of the I-864.

[justashooter 430]

if you seperate with intent to divorce and do not notify USICS then you are guilty of defrauding the US gov't for immigration benefits. your silence is conspiracy before the fact.you are commiting a crime, in such case. if you remain together so that he can retain immigration benefits, it's the same thing. this is true before and during AOS, during ROC, and at any time before he gains a 10 year card. you are breaking the law right now. do the right thing.

[K and L 27]

Just emphasizing what JimVaPhuong about being stuck w/financial obligations. Can someone show her for how long she will be "on the hook" if her husband receives his gc? Somke people think that because of a divorce they are no longer responsible for the terms of the I-864.

40 working quarters since his EAD -- 10 years -- or until he becomes a USC.

[justashooter 430]

40 working quarters since his EAD -- 10 years -- or until he becomes a USC.

to remind that if a couple are married and both working, and the USC has already met the minimum of quarters worked to be vested in SS that their quarters worked during the marraige are credited to the immigrant.

[Brother Hesekiel 2,236]

Here is the direct answer to the QUESTION the O.P. asked.

If you are not divorced by the time the AOS is approved, your husband is allowed to stay legally in this country for the rest of his life, assuming he complies with the residency requirements and doesn't get caught in doing something illegal.

Five years after he gets his Green Card, he can become a US citizen.

If that's NOT what you want, you'll have to pull the plug ASAP.

Edited July 17, 2010 by Just Bob

[Gringita/Morenito 0]

Sorry to hear about this..wishing you both the best..

My husband and I are getting a divorce. The decision was mine, and I would like for the process to be amicable. He is a decent person- just not such a great husband.

He entered on a K1 in March of 2008. We were married and filed for AOS within 3 months. We were interviewed for the first time in January of 2009, and then heard nothing for months. After many inquiries on our part, and finally going to our local congresswoman, we were called in for a second interview in November 2009. They told us at the conclusion of that interview that they believed that our relationship was valid, but they still needed to wait on one final check. Since then, nothing. In other words, he has not yet received his green card.

I do not want to force my husband out of the country, but I do not want to put myself in any sort of legal jeopardy for his sake. He would like to stay here for as long as he can, but does not want or intend to stay illegally.

So the first question is, what is my legal obligation? Do I need to advise USCIS of the divorce? If so, would I do that when the papers are filed, or when the divorce is final? Do I also need to send notice of canceling his sponsorship, or would that be automatically inferred from the notice of divorce?

Next question is, what does my husband need to do to remain here legally for as long as possible? We both know he cannot stay indefinitely and that once USCIS knows we are no longer married his visa will no longer be valid, but we're just wondering if he has some time to wrap things up and make some money before returning to his country. How would the process work for him once I (presumably) informed USCIS of the intent/finality of the divorce? Are there some sort of proceedings and/or lee time before he definitely has to leave, or is it immediate?

Any advice would be appreciated. Thanks,

Jennifer