divorce processed- update

[ml82 1]

Dude. I wish you all the best.

Follow above advice. Report every single development with ICE. Hire a lawyer!

Have you told your parents, in no uncertain terms, that with divorce prior to AOS, the only way for your wife to stay in the USA is with a fraudulent spousal abuse claim against YOU? Do they understand that?

i'm not sure how much they understand. the vietnamese community can be kind of sneaky when it comes to these type of things. i wouldn't think my parents would get to this level, but it sees like they are.

do any of you know what would happen if they do file this VAWA claim? what would happen next? they really don't have any sort of evidence whatsoever unless my parents claim to be witnesses. i still don't think my parents would go that far, it just seems to crazy, even for them, to pro-actively file an abuse claim against me.

[JimVaPhuong 4,863]

i'm not sure how much they understand. the vietnamese community can be kind of sneaky when it comes to these type of things. i wouldn't think my parents would get to this level, but it sees like they are.

do any of you know what would happen if they do file this VAWA claim? what would happen next? they really don't have any sort of evidence whatsoever unless my parents claim to be witnesses. i still don't think my parents would go that far, it just seems to crazy, even for them, to pro-actively file an abuse claim against me.

Your parent's statements will probably not be enough. That's why your mother mentioned taking you to court. They want to accuse you of abuse in a criminal court and get a conviction, using your parents as witnesses. The conviction would be enough evidence to support her VAWA claim. You would be left with a conviction for spousal abuse, and probation or possibly even some jail time. That conviction will follow you around for the rest of your life.

Take this seriously. All of the signs point to a VAWA claim. Your parents are apparently willing to ruin your life in order to save your family from the shame of sending your wife back to Vietnam.

It's ironic you mention that the Vietnamese community are sneaky. For a long time I had always thought this only applied to the girls in Vietnam who would do practically anything to get a visa to the US. My wife's niece set me straight. She told me I could trust family as long as I was on good terms with them, but never trust ANY other Vietnamese people, especially in business. "Sneaky" was the same adjective she used.

[ml82 1]

Your parent's statements will probably not be enough. That's why your mother mentioned taking you to court. They want to accuse you of abuse in a criminal court and get a conviction, using your parents as witnesses. The conviction would be enough evidence to support her VAWA claim. You would be left with a conviction for spousal abuse, and probation or possibly even some jail time. That conviction will follow you around for the rest of your life.

Take this seriously. All of the signs point to a VAWA claim. Your parents are apparently willing to ruin your life in order to save your family from the shame of sending your wife back to Vietnam.

It's ironic you mention that the Vietnamese community are sneaky. For a long time I had always thought this only applied to the girls in Vietnam who would do practically anything to get a visa to the US. My wife's niece set me straight. She told me I could trust family as long as I was on good terms with them, but never trust ANY other Vietnamese people, especially in business. "Sneaky" was the same adjective she used.

this really sucks to hear. my parents are always talking about how family has to stick together. i really really don't think they are willing to let me go to jail over this. no way. i hope they know what they're getting into if they are to pursue this route. and i hope their lawyer informs them correctly. otherwise, i hope it's just a scare tactic to pressure me. but even so, that's a scare tactic i didn't think they would use either.

i can't even hire an immigration lawyer at this point because i don't have the money. i only have my divorce lawyer.

anyway, thanks to all who have posted responses, it's been very helpful. i'll keep you all updated.

[JimVaPhuong 4,863]

this really sucks to hear. my parents are always talking about how family has to stick together. i really really don't think they are willing to let me go to jail over this. no way. i hope they know what they're getting into if they are to pursue this route. and i hope their lawyer informs them correctly. otherwise, i hope it's just a scare tactic to pressure me. but even so, that's a scare tactic i didn't think they would use either.

i can't even hire an immigration lawyer at this point because i don't have the money. i only have my divorce lawyer.

anyway, thanks to all who have posted responses, it's been very helpful. i'll keep you all updated.

If they press charges for abuse then you'll need a criminal lawyer - not a divorce or immigration lawyer.

Like people in any profession, lawyers came in all shapes and sizes. Some lawyers are sharks. They are relentless, and have only one objective - to win. They are willing to lie to anyone they have to lie to in order to achieve their objective. If the lawyer your parents have hired is one of these then they would choose their words carefully so as not to scare off your parents. "Don't worry. We're just going to ask for a restraining order so that we have it for the record." Of course, the lawyer will apologize profusely to your parents after you're convicted and sentenced to 30 days in jail. Doesn't matter to the lawyer. They'd rather apologize to your parents than lose their case. My ex-wife hired an attorney like this, and me and my attorney had to face off against her in court. In the end, it took a little 'graymail' to get my wife to call off her attorney. Fortunately, I knew some secrets about my ex-wife that she would not have wanted brought up in court.

Your divorce lawyer should at least have some experience with spousal abuse cases. Discuss this with your divorce lawyer. You need to be prepared because if they charge you with spousal abuse then you're going to need to defend yourself against those charges in court.

Something your wife and parents might not be aware of - if your wife is divorced at the time she files for VAWA then she has to demonstrate that the abuse was a cause for the divorce. You have to be ADAMANT that she is not allowed to introduce any accusations of abuse into the divorce record.

[rlogan 2,036]

but even so, that's a scare tactic i didn't think they would use either.

Your parents are using extortion for the purpose of immigration fraud. Their motive is a combination of greed, pride and who knows what else. As you said, they expect your ex-wife to support them in old age. As you said they are wanting to save face out of pride.

It is critical that you come to grips with the fact your parents have already committed a crime against you. It isn't a matter of whether they will in the future. They already have: the crime of extortion. In the furtherance of another crime: immigration fraud.

Were this me I would send a registered letter to my parents, signed by a notary, that sets forth exactly what they did: threaten you with court action, not having any legal basis at all, if you do not assist them with what appears to be immigration fraud. I would tell them that if they do not desist immediately that a copy of that letter is going to ICE. That is not extortion because you are acting to prevent a crime from being committed, and defending yourself against extortion in the furtherance of that crime.

If they even hesitate - stall, try to negotiate, scream at you for what a traitor you are, etc. - then send the letter.

Your parents are far, far ahead of you and taking advantage of the fact you would never believe they could commit crime against you. The problem is that the next move they make might very well be the one that lands you in jail, and finally you will be sitting there concluding that yeah - my parents are my enemies. It's hard to mount a defense when you are already in jail.

I would word this letter with only the truth. No embellishments. I think I would demand from them exactly what they are taking you to court for because that forces their hand.

These parents have disowned you. You are an object to attain ends, not their son. That is the mentality of criminal predators. These are not actions you can honor. I do not believe the Vietnamese are taught to honor their parents' commission of felony crimes. Parents have a duty to their children, and if they instead declare war on their children then the reciprocal obligations are nullified.

Your first priority has to be protecting yourself.

Edited March 17, 2011 by rlogan

[sachinky 465]

+1000 to the above post.

[ml82 1]

Your parents are using extortion for the purpose of immigration fraud. Their motive is a combination of greed, pride and who knows what else. As you said, they expect your ex-wife to support them in old age. As you said they are wanting to save face out of pride.

It is critical that you come to grips with the fact your parents have already committed a crime against you. It isn't a matter of whether they will in the future. They already have: the crime of extortion. In the furtherance of another crime: immigration fraud.

Were this me I would send a registered letter to my parents, signed by a notary, that sets forth exactly what they did: threaten you with court action, not having any legal basis at all, if you do not assist them with what appears to be immigration fraud. I would tell them that if they do not desist immediately that a copy of that letter is going to ICE. That is not extortion because you are acting to prevent a crime from being committed, and defending yourself against extortion in the furtherance of that crime.

If they even hesitate - stall, try to negotiate, scream at you for what a traitor you are, etc. - then send the letter.

Your parents are far, far ahead of you and taking advantage of the fact you would never believe they could commit crime against you. The problem is that the next move they make might very well be the one that lands you in jail, and finally you will be sitting there concluding that yeah - my parents are my enemies. It's hard to mount a defense when you are already in jail.

I would word this letter with only the truth. No embellishments. I think I would demand from them exactly what they are taking you to court for because that forces their hand.

These parents have disowned you. You are an object to attain ends, not their son. That is the mentality of criminal predators. These are not actions you can honor. I do not believe the Vietnamese are taught to honor their parents' commission of felony crimes. Parents have a duty to their children, and if they instead declare war on their children then the reciprocal obligations are nullified.

Your first priority has to be protecting yourself.

thanks for the info. all of this talk makes me so stressed out, but what you're saying makes sense.

about this original letter that my parents wanted me to write- the one about entering this marriage in good faith. jimvaphuong mentioned that to file a VAWA claim, you need proof to show that you entered the marriage in good faith. i should definitely not play into their hands, right? they kept insisting that if i write this letter, everything will be fine because their lawyer "said so."

the divorce depositions are for april 11th, my wife has until march 28th to respond to the divorce complaint. do you think it's likely for my wife to contest it? is it a "smart" move on their part- perhaps to stall time. i have been away for a year and 9 months at this point and my divorce lawyer said they really don't have any chance even if they contest it. i would assume it would be wasted money and effort on their part to contest the divorce. however, if they do, i'd have to fly back to the states and appear in court. what do you think?

[Deputy Purple 1,294]

about this original letter that my parents wanted me to write- the one about entering this marriage in good faith. jimvaphuong mentioned that to file a VAWA claim, you need proof to show that you entered the marriage in good faith. i should definitely not play into their hands, right? they kept insisting that if i write this letter, everything will be fine because their lawyer "said so."

the divorce depositions are for april 11th, my wife has until march 28th to respond to the divorce complaint. do you think it's likely for my wife to contest it? is it a "smart" move on their part- perhaps to stall time. i have been away for a year and 9 months at this point and my divorce lawyer said they really don't have any chance even if they contest it. i would assume it would be wasted money and effort on their part to contest the divorce. however, if they do, i'd have to fly back to the states and appear in court. what do you think?

Now you're understanding what's going on. Don't sign anything for them.

If you have to return to the States for a court appearance DO NOT STAY WITH THEM. Any contact without impartial witnesses gives her/them an opening to claim abuse.

[JimVaPhuong 4,863]

thanks for the info. all of this talk makes me so stressed out, but what you're saying makes sense.

about this original letter that my parents wanted me to write- the one about entering this marriage in good faith. jimvaphuong mentioned that to file a VAWA claim, you need proof to show that you entered the marriage in good faith. i should definitely not play into their hands, right? they kept insisting that if i write this letter, everything will be fine because their lawyer "said so."

the divorce depositions are for april 11th, my wife has until march 28th to respond to the divorce complaint. do you think it's likely for my wife to contest it? is it a "smart" move on their part- perhaps to stall time. i have been away for a year and 9 months at this point and my divorce lawyer said they really don't have any chance even if they contest it. i would assume it would be wasted money and effort on their part to contest the divorce. however, if they do, i'd have to fly back to the states and appear in court. what do you think?

There are several things your wife needs for a successful VAWA claim:

1. Proof she entered the marriage in good faith.

2. Proof she was abused.

3. If divorced, evidence that the abuse was the direct cause of the divorce.

They're asking you to give them item #1 on a silver platter. Obviously, don't do it.

Some fraudulent VAWA petitioners manage to get the evidence they need without actually filing charges against the US citizen spouse. They get a restraining order, medical examinations of supposed injuries, psychological counseling, affidavits from witnesses, etc. It sounds like their lawyer doesn't believe they have enough evidence so they're looking at filing charges against you. They can avoid this if you return to their home. Your wife would run out of the house screaming that you're abusing her, and then call the cops. They would arrest you, which would be enough to generate the evidence they need. You should not return to your parents home nor be anywhere near your wife until this is finished.

Item #3 is a tough nut because YOU filed for the divorce. She needs to get an accusation of abuse entered into the divorce record. She might not be able to do this if she consents to the divorce. It depends on the divorce laws in your state. I wouldn't be surprised if she contests the divorce or counter-sues on the grounds of spousal abuse.

[ml82 1]

some more updates. i called ICE and filed an official report. my lawyer said she has until march 28th to respond to the divorce and the depositions are set for april 11th. i'm afraid she might contest it just to spite me since my parent have her back.

also, i read this in a VAWA article:

In relationships of domestic violence, this often means that the abusive spouse uses his ability to control the immigration status of the victim as yet another method of abuse.

is that a form of abuse? if so, am i guilty of it? what can i do??

[ml82 1]

i found an email of her stating she wanted a greencard so that she can go back to vietnam and visit her family. but in that email, she talks about me having a girlriend, which is true. the fact that i was in a relationship before legally divorcing her, does that put me in any trouble?

[TracyTN 237]

Well, it doesn't help matters any - but probably hurts you more in the divorce than anything else. Though come to think of it, if she is going to claim abuse to USCIS, you having a girlfriend (that she can prove) doesn't exactly paint you in the best light.

[Haarp425 26]

If you two were married within 90 days of her coming to the USA, she may be able to AOS. The requirement for K-1 visa holder is that they must get married within 90 days upon arriving in the USA. However, she may need a lawyer but if you look below on paragraph 4, her case belongs there. She just have to prove that marriage was a bona fide one.

Decided March 17, 2011

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) Under section 245(d) of the Immigration and Nationality Act, 8 U.S.C. § 1255(d) (2006),

a fiancé(e) visa holder can only adjust status based on the marriage to the fiancé(e)

petitioner. Matter of Zampetis, 14 I&N Dec. 125 (Reg. Commr 1972), superseded.

(2) A fiancé(e) visa holder whose bona fide marriage to the fiancé(e) visa petitioner is more

than 2 years old at the time the adjustment application is adjudicated is not subject to the

provisions for conditional resident status under section 216 of the Act, 8 U.S.C. § 1186a

(2006).

(3) A fiancé(e) visa holder satisfies the visa eligibility and visa availability requirements of

section 245(a) of the Act on the date he or she is admitted to the United States as a K-1

nonimmigrant, provided that the fiancé(e) enters into a bona fide marriage with the

fiancé(e) petitioner within 90 days.

(4) A fiancé(e) visa holder may be granted adjustment of status under sections 245(a) and

(d) of the Act, even if the marriage to the fiancé(e) visa petitioner does not exist at the time

that the adjustment application is adjudicated, if the applicant can demonstrate that he or

she entered into a bona fide marriage within the 90-day period to the fiancé(e) visa

petitioner.

Source: http://www.justice.gov/eoir/vll/intdec/vol25/3707.pdf

Edited March 26, 2011 by Haarp425

[ml82 1]

If you two were married within 90 days of her coming to the USA, she may be able to AOS. The requirement for K-1 visa holder is that they must get married within 90 days upon arriving in the USA. However, she may need a lawyer but if you look below on paragraph 4, her case belongs there. She just have to prove that marriage was a bona fide one.

Decided March 17, 2011

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) Under section 245(d) of the Immigration and Nationality Act, 8 U.S.C. § 1255(d) (2006),

a fiancé(e) visa holder can only adjust status based on the marriage to the fiancé(e)

petitioner. Matter of Zampetis, 14 I&N Dec. 125 (Reg. Comm’r 1972), superseded.

(2) A fiancé(e) visa holder whose bona fide marriage to the fiancé(e) visa petitioner is more

than 2 years old at the time the adjustment application is adjudicated is not subject to the

provisions for conditional resident status under section 216 of the Act, 8 U.S.C. § 1186a

(2006).

(3) A fiancé(e) visa holder satisfies the visa eligibility and visa availability requirements of

section 245(a) of the Act on the date he or she is admitted to the United States as a K-1

nonimmigrant, provided that the fiancé(e) enters into a bona fide marriage with the

fiancé(e) petitioner within 90 days.

(4) A fiancé(e) visa holder may be granted adjustment of status under sections 245(a) and

(d) of the Act, even if the marriage to the fiancé(e) visa petitioner does not exist at the time

that the adjustment application is adjudicated, if the applicant can demonstrate that he or

she entered into a bona fide marriage within the 90-day period to the fiancé(e) visa

petitioner.

Source: http://www.justice.gov/eoir/vll/intdec/vol25/3707.pdf

hmmmm interesting.... this is possible even though i withdrew my sponsorship with her?

then i wonder why she is emailing me these VAWA articles to me.

[JimVaPhuong 4,863]

If you two were married within 90 days of her coming to the USA, she may be able to AOS. The requirement for K-1 visa holder is that they must get married within 90 days upon arriving in the USA. However, she may need a lawyer but if you look below on paragraph 4, her case belongs there. She just have to prove that marriage was a bona fide one.

Decided March 17, 2011

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) Under section 245(d) of the Immigration and Nationality Act, 8 U.S.C. § 1255(d) (2006),

a fiancé(e) visa holder can only adjust status based on the marriage to the fiancé(e)

petitioner. Matter of Zampetis, 14 I&N Dec. 125 (Reg. Comm’r 1972), superseded.

(2) A fiancé(e) visa holder whose bona fide marriage to the fiancé(e) visa petitioner is more

than 2 years old at the time the adjustment application is adjudicated is not subject to the

provisions for conditional resident status under section 216 of the Act, 8 U.S.C. § 1186a

(2006).

(3) A fiancé(e) visa holder satisfies the visa eligibility and visa availability requirements of

section 245(a) of the Act on the date he or she is admitted to the United States as a K-1

nonimmigrant, provided that the fiancé(e) enters into a bona fide marriage with the

fiancé(e) petitioner within 90 days.

(4) A fiancé(e) visa holder may be granted adjustment of status under sections 245(a) and

(d) of the Act, even if the marriage to the fiancé(e) visa petitioner does not exist at the time

that the adjustment application is adjudicated, if the applicant can demonstrate that he or

she entered into a bona fide marriage within the 90-day period to the fiancé(e) visa

petitioner.

Source: http://www.justice.gov/eoir/vll/intdec/vol25/3707.pdf

Different kettle of fish. Alfred Sesay filed an AOS application while he was still married. USCIS denied it because it was filed based on the I-129F more than two years after the marriage. After it was denied he divorced, remarried and tried to adjust status based on the new marriage. That was denied because he originally entered with a K1 visa. He then appealed the denial of the first AOS petition.

The EOIR determined that the first AOS petition should not have been denied, but instead should have been adjudicated as a section 245(a) (immediate relative) rather than 245(d) (fiance visa). They also determined that his subsequent divorce didn't void his first AOS petition because he was eligible at the time it was submitted and originally adjudicated. They based their decision on the 9th Circuit Choin v. Mukasey case. In that case, Choin married in the 90 day window and filed for AOS, but USCIS took more than two years to adjudicate the application. By that time, Choin had divorced. They eventually denied saying that Choin couldn't adjust based on the K1 because they weren't eligible for conditional resident status under 245(d). The courts determined that Choin shouldn't be held liable for USCIS's a$$ dragging (a factor unique to the 9th Circuit district), and that Choin should have still been eligible to adjust under 245(a) (a factor universally accepted in all districts).

In short, Alfred Sesay met all of the requirements and filed a timely AOS petition. He did not become ineligible to appeal the decision on that petition simply because he'd subsequently divorced. The EOIR determine his eligibility date extended back to the day he entered using the K1 provided that he met the subsequent requirement to marry within 90 days.

Still, the way the summary is written it could be construed as meaning someone who enters with a K1 and marries within 90 days has met the requirements, and could adjust even if they divorced prior to filing. They even mentioned that divorce doesn't revoke the validity of an I-129F in the same way it would an I-130. It will be interesting to see what policy changes arise because of this.