USCIS scare, AOS approved and Divorce pending

[meauxna 15]

I would say that filing a no-fault divorce immediately after the AOS interview is EVIDENCE. Unless the OP supplies some measure of evidence to rebut it, the scales tip in the direction of fraud. They apparently had other evidence too based on their allegations. I doubt they asked the questions out of the blue.

I think the missing element for the OP is the good faith part.

Mmm. Reminds me of the (elsewhere ongoing) "30/60 day 'rule'" (consular guideline regarding 'when' the marriage takes place after entry'). Rumor is that CIS applies the same 'rule' (which isn't a rule and belongs to DoS).

Too bad the OP doesn't have representation. I doubt he'll be able to argue much of this on his own.

I notice that the cited case is from 1978. I wonder what the implication is now for a marriage that is less than 2 years old? The Carla Freeman case (tho totally unrelated) explains the "2 years of marriage" requirement. Heck, we had a widow thrown out of our city on the same (death + 2 years marriage) 'technicality'.

[diadromous mermaid 36]

I would say that filing a no-fault divorce immediately after the AOS interview is EVIDENCE. Unless the OP supplies some measure of evidence to rebut it, the scales tip in the direction of fraud. They apparently had other evidence too based on their allegations. I doubt they asked the questions out of the blue.

I think the missing element for the OP is the good faith part.

John, I think that we all understand your argument and find it quite compelling. I also think that we all agree at this point that USCIS' inquiry will focus on all the circumstances surrounding the marriage and that the OP will be required to establish, by a preponderance of the evidence, that his marriage had been entered into in "good faith," as that term is defined in case law.

My only point all along has been that the OP's response to USCIS' "are you still married" question may not have been unlawful, imprudent or "dumb." The cases (at least the ones that have been posted in this thread) seem to suggest that his answer either did NOT amount to a misrepresentation or, even if it did, that the misrepresentation does NOT make him ineligible for an adjustment of status. Do you agree with this assessment?

Not entirely, am1996. Well, not as far as I can see, in the instant case, that is.

Can't recall which one of those I listed, but here was one case (Nwe York seems to ring a bell, as the divorce laws were germane) that did go so far as to suggest that a marriage in the terminal stage, and by that I mean if a legal separation had been struck between the parties or if divorce proceedings had been initiated in the Court, that this might impact the determination of the alien's "intent" in terms of whether or not the union was bonafide at inception. So, once again, we are back to square one, in my mind. While the BIA has asserted that 'viability' shall not be the determining factor in adjustment of status cases, but rather the bona fide nature of the marriage will control, still a separation or divorce underway might in that the boan fide nature of the marriage *could* be tarnished with legal process underway before the adjustment of status petition has been adjudicated.

I feel like we're in Eulerian unicursular route of a labyrinth.

[am1996 0]

My only point all along has been that the OP's response to USCIS' "are you still married" question may not have been unlawful, imprudent or "dumb." The cases (at least the ones that have been posted in this thread) seem to suggest that his answer either did NOT amount to a misrepresentation or, even if it did, that the misrepresentation does NOT make him ineligible for an adjustment of status. Do you agree with this assessment?

I wanted to correct my own post above to say that the second to last sentence should reas as follows: "The cases (at least the ones that have been posted in this thread) seem to suggest that his answer either did NOT amount to a misrepresentation or, even if it did, that that misrepresentation ALONE does NOT make him ineligible for an adjustment of status."

[diadromous mermaid 36]

My only point all along has been that the OP's response to USCIS' "are you still married" question may not have been unlawful, imprudent or "dumb." The cases (at least the ones that have been posted in this thread) seem to suggest that his answer either did NOT amount to a misrepresentation or, even if it did, that the misrepresentation does NOT make him ineligible for an adjustment of status. Do you agree with this assessment?

I wanted to correct my own post above to say that the second to last sentence should reas as follows: "The cases (at least the ones that have been posted in this thread) seem to suggest that his answer either did NOT amount to a misrepresentation or, even if it did, that that misrepresentation ALONE does NOT make him ineligible for an adjustment of status."

That's the way I see it too. The misrepresentation, if there were any, would not ALONE preclude adjustment, but the fact that the marriage was in a terminal status *might* affect the success of any adjustment.

[am1996 0]

Not entirely, am1996. Well, not as far as I can see, in the instant case, that is.

Can't recall which one of those I listed, but here was one case (Nwe York seems to ring a bell, as the divorce laws were germane) that did go so far as to suggest that a marriage in the terminal stage, and by that I mean if a legal separation had been struck between the parties or if divorce proceedings had been initiated in the Court, that this might impact the determination of the alien's "intent" in terms of whether or not the union was bonafide at inception. So, once again, we are back to square one, in my mind. While the BIA has asserted that 'viability' shall not be the determining factor in adjustment of status cases, but rather the bona fide nature of the marriage will control, still a separation or divorce underway might in that the boan fide nature of the marriage *could* be tarnished with legal process underway before the adjustment of status petition has been adjudicated.

I feel like we're in Eulerian unicursular route of a labyrinth.

That's EXACTLY RIGHT (even the state is correct) The decision you are referring to is Matter of Lenning, Interim Decision #2817 (BIA 1980). It seems to be contradicted by the reasoning in Matter of Kondo, Interim Decision 2781 (BIA 1980). I have not and do not anticipate looking at the most recent cases but, based on the cases you've posted, I wholeheartedly support and agree with your statement above. Hence, the immigration attorney recommendation.

[john_and_marlene 162]

I would say that filing a no-fault divorce immediately after the AOS interview is EVIDENCE. Unless the OP supplies some measure of evidence to rebut it, the scales tip in the direction of fraud. They apparently had other evidence too based on their allegations. I doubt they asked the questions out of the blue.

I think the missing element for the OP is the good faith part.

John, I think that we all understand your argument and find it quite compelling. I also think that we all agree at this point that USCIS' inquiry will focus on all the circumstances surrounding the marriage and that the OP will be required to establish, by a preponderance of the evidence, that his marriage had been entered into in "good faith," as that term is defined in case law.

My only point all along has been that the OP's response to USCIS' "are you still married" question may not have been unlawful, imprudent or "dumb." The cases (at least the ones that have been posted in this thread) seem to suggest that his answer either did NOT amount to a misrepresentation or, even if it did, that the misrepresentation does NOT make him ineligible for an adjustment of status. Do you agree with this assessment?

I agree that is was not unlawful and not dumb. I think it may have be imprudent in that he was given an opportunity to explain the "good faith" of his marriage and he did not--choosing instead to stand on the technical state of his marriage. I have the impression that he gave that response more in desperation to save his residence status having been exposed as a possible fraud. He may have thought wrongly that being married was all that was required. If I remember correctly, he posted that he believed that as long as he was married, they could not deny him. Perhaps he was not aware of the "good faith" aspect of the marriage requirement. The statement itself does not make him ineligible for an adjustment of status. However, if evidence is present that suggests that the marriage was not in good faith and he provides no evidence to the contrary, the adjustment of status can be denied and, if already approved, can be revoked.

So, for the most part we agree. As for prudence, I think he either missed an opportunity to provide "good faith" testimony or he had none to offer.

Additionally, I would think that they will scrutinize closely any future answers he may give based on his lack of disclosure on this question. So, even if this response isn't held against him, the demeanor of future questioning may be scewed against him. Just because a position is just and right and legal does not make it prudent.

[ceriserose 1]

I still have a headache.

I'm with you. I propose Baileys.

[john_and_marlene 162]

....

It was not in my original plan when I woke this morning to do quite so much thinking. I will clearly be needing a nap later.

Naps are just.

No day is ever so bad that it cannot be fixed with a nap.

[am1996 0]

John, on the prudential nature of the OP's answer, he had to make a quick judgment call -- if USCIS has no idea about the impending divorce and their question was not prompted by any unusual information, then telling them about it would have opened the door to a potential investigation. If, on the other hand, USCIS already knows something about it but he chose not to disclose it (even though we now agree that the nondisclosure was probably not unlawful), then your reasoning prevails and he may have made his situation worse.

On every other point, I completely agree with both of you (whoever thought we'd ever get here ).

Edited August 29, 2006 by am1996

[john_and_marlene 162]

John, on the prudential nature of the OP's answer, he had to make a quick judgment call -- if USCIS has no idea about the impending divorce and their question was not prompted by any unusual information, then telling them about it would have opened the door to a potential investigation. If, on the other hand, USCIS already knows something about it but he chose not to disclose it (even though we now agree that the nondisclosure was probably not unlawful), then your reasoning prevails and he may have made his situation worse.

On every other point, I completely agree with both of you (whoever thought we'd ever get here ).

Now for that nap!

But first I'd like to share a story.

There used to be a district judge here where I live who gave a speech at the beginning of each day of court. He said that he realizes both sides of an arguement believe that their position is right and just, but at the end of the day, he would have to rule and someone would not be happy. He recommended that until your case came up to continue to seek an agreement. As long as the parties worked toward an agreement, their outcomes were in their own hands. As soon as they put the onus on him to decide, it was out of their control.

What's the point of my story?

No matter how correct and just and right you think your legal position is, you just might find yourself on the losing end.

[rebeccajo 14]

And that, my friends, sounds like a wrap-up to me!!

[atul 0]

Hi everyone,

I consulted an attorney yesterday morning and along with the scare came along a whooping 420 $/hr 1-on-1 USCIS consultation proposal. I thought and thought and end of the day decided to leave it on the actions of the USCIS adjudicators.(approval/denial).

Went back home from work and in my mailbox were 5 mails all from VSC. whoa, i said to myself, time to pack my bags, boy !!!!

On opening, 4 of em were Notice of Action (Welcome notice or I-797) and the last mail had it all. The 10-yr PR card.

Finally an end to my waiting.....whew, whatta relief.....thanks to all who responded, advised or even ridiculed. So the moral of the story is.....

"its sometimes better to open ur mouth and tell a lie rather than keeping ur mouth shut by acknowledging the truth and revealing all doubts....USCIS favors the brave too...."

- a happy man

- Atul

Edited August 29, 2006 by atul

[am1996 0]

Congratulations, Atul. This is GREAT news!

Since we are sharing war stories here, I can tell you that during my naturalization interview a few years ago the adjudicator spent quite some time probing and questioning me on whether I had left the country since the filing of any of the immigration applications (I didn't have AP). The answer to that was "no" (I really hadn't) but the line of questioning and the adjudicator's fervor certainly had me quite worried that my records might've been cross-linked with somebody else's. Well, the adjudicator finally relaxed and told me that she did that to all the aliens appearing before her.

The moral of the story? Just because you are being questioned about a matter does not mean that the person asking the question is on to something. Don't jump to too many conclusions based on a line of questioning.

Edited August 29, 2006 by am1996

[tamz 0]

Anyone want popcorn??

[Dr_LHA 3]

Hey congrats. Looks like this godawful thread had a happy ending!