Withdrawal I360 and re-filling I130

[gamer 1]

Hi everyone, I have spent all day today reading this site and i love how imformative and friendly everyone is.

Im new and im not sure if this is the right forum, so please bare with me.

Im going to summaries this and make it short.

Got married in 2004, divorced 2006, turn out he was gay.

Got remarried in 2009,(with the husband USC since 2007) took forever to save money to file with a lawyer.

I have 2 kids from a previous relationship but they were born here.

Got separated and Sept 2010, filed and I360 on my lawyers advice.

We reconciled in March 2011.

I called USCIS and they told me to write a letter to VSC and withdraw, wait for a response and then go ahead and follow the instructions.

That was 3 weeks ago and I know my lawyer is bs*** me. I asked him to write a letter on mybehaf and do it, apparently its gonna take him 2 weeks to do.

I dont have a timeline, but i like that idea. As well i should let you know As of August 15th (and i know this date cuz i had to call everyday for 2 weeks to get the application reciept#, and i check online on the website) contacted my lawyer for more evidence,he didnt contact me till October 15th. I know there is a time limit for me to respond to the request, but i think the lawyer is dragging it out... As soon as i get that letter out im dropping him.

My question is after withdrawing is it possible to refile as the I130 and would the fact that i withdraw the I360, would that affect the outcome of the I130 ????

[JimVaPhuong 4,863]

This is confusing.

Are you saying you filed an I-360 claiming abuse by your current US citizen husband, but now you've reconciled and you want to withdraw the I-360 and refile with an I-130?

Yes, a timeline would be extremely helpful here, starting with when you entered the US, what kind of visa you had, and when your status expired. Here, I'll start...

xx/xx - Arrived in the US with xx visa.

xx/xx - Authorized stay expired.

xx/04 - Married.

xx/06 - Divorced. Husband was gay.

xx/07 - Upcoming second husband becomes US citizen.

xx/09 - Married second husband.

xx/xx - Separated from second husband.

09/10 - Filed I-360 claiming abuse from second husband.

03/11 - Reconciled with second husband.

08/11 - Lawyer got an RFE.

10/11 - Looking to withdraw I-360 and file I-130.

Feel free to fill in when the kids were born, and which of the two husbands (if either) were the father. Also, make corrections if I've got anything out of order.

Some obvious questions come to mind. Have you gotten a prima facie on the I-360 yet? What was the RFE for? Depending on the answers to these questions, and perhaps a few others, I could see how this might raise some eyebrows at USCIS. For example, if it looked like your I-360 was going to be denied then I could see where they'd view a subsequently filed I-130 with great suspicion. Also, you'd be filing an I-130 with the same petitioning US citizen husband whom you previously accused of "battery or extreme cruelty". I think that might cast some doubt on the veracity of your abuse claim. I mean how bad could it have been if you've now reconciled with him? Any chance USCIS could accuse you of misrepresentation on the I-360? Withdrawing the I-360 doesn't make any issues related to that petition go away.

Any other potential issues? Have you worked without authorization since arriving here? Have you gotten into any trouble with the law (the "good moral character" clause)? Ever claimed to be a US citizen on any US government form or to any US government official?

[gamer 1]

This is confusing.

Are you saying you filed an I-360 claiming abuse by your current US citizen husband, but now you've reconciled and you want to withdraw the I-360 and refile with an I-130?

YES

Yes, a timeline would be extremely helpful here, starting with when you entered the US, what kind of visa you had, and when your status expired. Here, I'll start...

01/22/04 - Arrived in the US with B1/B2 visa.

07/20/2001 - Authorized stay expired. (ON THE I94, IF THAT IS WHAT UR ASKING)

03/31/2004 - Married.

03/31/2006 - Divorced. Husband was gay.

???? - Upcoming second husband becomes US citizen.

01/12/09 - Married second husband.

09/15/2010 - Separated from second husband.(DUE TO FINANCIALPROBLEMS)

10/15/2010 - Filed I-360 claiming abuse from second husband.

03/11 - Reconciled with second husband.

08/11 - Lawyer got an RFE.(DON'T KNOW WHAT THIS IS)

10/11 - Looking to withdraw I-360 and file I-130.

Feel free to fill in when the kids were born,(01/05/2002 TWINS) and which of the two husbands (if either) were the father. (NONE HES BACK HOME IN TRINIDAD) Also, make corrections if I've got anything out of order. (I WAS ON VACATION HERE AND WENT INTO PRETERM LABOR, I RETURNED HOME)

Some obvious questions come to mind. Have you gotten a prima facie on the I-360 yet?(DON'T KNOW WHAT THESE TERMS ARE AS THE LAWYER WAS DEALING WITH IT) What was the RFE for? Depending on the answers to these questions, and perhaps a few others, I could see how this might raise some eyebrows at USCIS. For example, if it looked like your I-360 was going to be denied (NOT DENIED ITS PENDING ON ADDITIONAL EVIDENCE SUPPORT) then I could see where they'd view a subsequently filed I-130 with great suspicion. Also, you'd be filing an I-130 with the same petitioning US citizen husband whom you previously accused of "battery or extreme cruelty".(YES, HE GOT A DUI WHILE SEPARATED AND IT FREAKED HIM OUT AND HE IS SCARED STRAIGHT SINCE THEN THIS HAPPENED IN NOV 2010 ) I think that might cast some doubt on the veracity of your abuse claim. I mean how bad could it have been if you've now reconciled with him? (IT WAS VERBAL, EMOTIONAL AND A BIT PSYCHOLOGICAL, AND PHYSICAL WITH THE KIDS SOMETIMES!) Any chance USCIS could accuse you of misrepresentation on the I-360? Withdrawing the I-360 doesn't make any issues related to that petition go away.

Any other potential issues? Have you worked without authorization since arriving here? (NO I HAVEN'T) Have you gotten into any trouble with the law(NO) (the "good moral character" clause)? Ever claimed to be a US citizen on any US government form or to any US government official? (NO)

[gamer 1]

I answered ur questions within ur response just to make sure i answered them all Thanks for replying and im glad its you Jim. Alot of ppl say ur the most knowledgeable one here!!!

[JimVaPhuong 4,863]

01/22/04 - Arrived in the US with B1/B2 visa.

03/31/2004 - Married.

07/20/2004 - Authorized stay expired. (ON THE I94' date=' IF THAT IS WHAT UR ASKING)

03/31/2006 - Divorced. Husband was gay.

???? - Upcoming second husband becomes US citizen.

01/12/09 - Married second husband.

09/15/2010 - Separated from second husband.(DUE TO FINANCIALPROBLEMS)

10/15/2010 - Filed I-360 claiming abuse from second husband.

03/11 - Reconciled with second husband.

08/11 - Lawyer got an RFE.(DON'T KNOW WHAT THIS IS)

10/11 - Looking to withdraw I-360 and file I-130.[/quote']

Ok, I'm sure your I-94 didn't expire three years before you arrived in the US, so I'm guessing you had a six month entry and it actually expired in July of 2004. I've made the corrections above, and resorted the timeline.

Regarding the RFE, you said they contacted your lawyer on August 15th asking for more evidence (Request For Evidence = RFE).

Now, the rest of your response:

Feel free to fill in when the kids were born' date='(01/05/2002 TWINS) and which of the two husbands (if either) were the father. (NONE HES BACK HOME IN TRINIDAD) Also, make corrections if I've got anything out of order. (I WAS ON VACATION HERE AND WENT INTO PRETERM LABOR, I RETURNED HOME)

Some obvious questions come to mind. Have you gotten a prima facie on the I-360 yet?(DON'T KNOW WHAT THESE TERMS ARE AS THE LAWYER WAS DEALING WITH IT) What was the RFE for? Depending on the answers to these questions, and perhaps a few others, I could see how this might raise some eyebrows at USCIS. For example, if it looked like your I-360 was going to be denied (NOT DENIED ITS PENDING ON ADDITIONAL EVIDENCE SUPPORT) then I could see where they'd view a subsequently filed I-130 with great suspicion. Also, you'd be filing an I-130 with the same petitioning US citizen husband whom you previously accused of "battery or extreme cruelty".(YES, HE GOT A DUI WHILE SEPARATED AND IT FREAKED HIM OUT AND HE IS SCARED STRAIGHT SINCE THEN THIS HAPPENED IN NOV 2010 ) I think that might cast some doubt on the veracity of your abuse claim. I mean how bad could it have been if you've now reconciled with him? (IT WAS VERBAL, EMOTIONAL AND A BIT PSYCHOLOGICAL, AND PHYSICAL WITH THE KIDS SOMETIMES!) Any chance USCIS could accuse you of misrepresentation on the I-360? Withdrawing the I-360 doesn't make any issues related to that petition go away.

Any other potential issues? Have you worked without authorization since arriving here? (NO I HAVEN'T) Have you gotten into any trouble with the law(NO) (the "good moral character" clause)? Ever claimed to be a US citizen on any US government form or to any US government official? (NO)[/quote']

I'm a little confused about the kids. You came to the US on vacation in 2002, you were pregnant, the kids were born in the US, and then you returned to Trinidad. Is that correct?

"Prima facie" is the first major milestone in an I-360 VAWA case. It's a notice from USCIS that there appears, at least initially, to be enough evidence of abuse to warrant accepting the I-1360 for adjudication. From your description, it sounds like USCIS is waiting for additional evidence of the abuse (which they would have sent an RFE requesting). This means you haven't submitted enough evidence yet to convince them to even start adjudicating your I-360 yet.

Ok, it's personal opinion time. I've never seen anyone describe a case like yours before.

You came to the US with a tourist visa and your kids were born here. That raises suspicion that you might have used this opportunity to get some immigration "insurance" in the form of US citizen children - what some people call "anchor babies". Probably not a big deal because you returned to Trinidad.

Two years later you return to the US with a tourist visa. Two months after arriving you've married a man in the US. Two years later you divorce him because you discover he's gay. Was the first husband a US citizen? Did he ever file any immigration papers for you?

Three years later you marry another man who recently became a naturalized US citizen. Less than a year later you separate because of financial reasons, and then one month later you've filed an I-360 to get a green card through a claim of abuse. Now your husband has been 'scared straight' by a DUI, you've reconciled, and now you want to withdraw the I-360 (which is still waiting for a response to an RFE) and file an I-130.

Yep, I can see an immigration officer having all sorts of doubts about this case. First, they're definitely going to think you planned the first marriage before you arrived in 2004 because you married only two months after arriving. That, by itself, is not a bad thing. It's perfectly legal to get married in the US while visiting. However, you stayed after you got married which they'll conclude means you intended not only to marry when you entered the US but that you also intended to immigrate when you entered the US. That's called "preconceived intent". They won't deny solely for that reason, but it's strike one.

Next, they'll suspect that the first marriage was entered into for the purpose of obtaining an immigration benefit. If your first husband never filed any immigration papers for you then suspicion is as far as that will ever get. If he did file papers and they were denied or abandoned then that would clinch their suspicion.

Finally, they'll suspect you entered the second marriage because you failed to get a green card through the first marriage. They'll suspect you left your husband less than a year later because he wasn't moving fast enough helping you get a green card (financial reasons?), so you filed an I-360 (did you ask for a fee waiver?). They suspect that you thought your I-360 was headed for denial after you got the RFE, and changed your tactic, and that's why your now filing an I-130 with your husband. They might think he changed his mind after he found out that an abuse claim requires evidence, which sometimes means creating a police record against him.

Look, I'm reading between the lines a lot here because I don't know all of the actual facts, but I suspect the USCIS immigration officer won't know them either. A cursory look at your circumstances does sound like someone who is willing to try just about anything to get a green card. I hope your attorney is helping you lay out all of the facts in a way that will alleviate the suspicions of the IO. Otherwise, you might be in for a rough time.

[gamer 1]

Thank you Jim for responding.

Yes the kids were born up here. I was 4 months pregnant when I came up on vacation to shop for them. My ticket was to leave in June, and due to have them end of July and they came 01st May. I can see people (IO) think they are "anchor babies". I did return before the I95 date.

The REF was sent to the lawyer, that's another case by itself he seems to be giving my bad advice and in it for the money! And he only told me about the Background check 2 weeks before the date it was needed.

Yes they wanted more evidence. Originally, I sent 3 affidavits of friends and I sent a 5 page letter. Then they requested a police background check on me. Did that and sent it in.

THE STORY.

Two years later i did return on the same b1/b2 visa which expired 12.18.10 First husband Richard. I knew from back home, and old friend and we reconnected after me and the kids dad broke up. That relationship was a disaster once we got married. He is Bi, and I found that out later into the marriage, because of his persistent request for certain acts. *use your imagination, you are gonna be right* Not to mention he was obsessive-possessive. Not to offend anyone who may read this what i say is for insight only. He is black and i'm white. He wanted to breed, as he put it, mixed kids, I personally didn't want any because I had 2 two year old. So there were a lot of problems till I had enough and kicked him out. He even was using the fact that he could file for me and I would have to stay with him! NO (I am of good character) we never did file, I wasn't comfortable doing that because the marriage was a mess. He is Neutralized and from Trinidad. I can see the "preconceive Intent" however i wanted to go home after my time was up and he didn't want me to go. Because he was very jealous and thought I would have cheated back in Trinidad. He even suggested leaving my kids with him and i go back, just to make sure i didn't leave him.

I met my present husband 6 months before my divorce was finalized. He is an American Citizen born in Philly. We are in Florida, if i didn't mention that! Dated (2006) for 10 months, moved in,(2007) lived together for almost 2 years, then got married (01.09). We separated a year and 9 months later. We were about to file, and things got vile due to financial stress as he was the sole income provider with 3 people to take care of. So i put that on hold, then the lawyer said from what i told him i had a good case for the I360. This should have been my first clue that the lawyer was no good because the paper work sat on his desk for a month.

I didn't ask for a fee waiver, I didn't know about that, till visiting this forum that, that was even possible.

Brian(husband) doesn't know much about immigration, I told him the lawyer is handling it. So he doesn't know about the I360. Sneaky I know. (this is the only guilty thing i have done) but if i tell him he would flip out, and things are going really well now, so i'm trying to let sleeping dogs lie.

Brings me to another question is he gonna find out because I'm going to file the I130???

He has a temper. Whatever i wrote on that 5 page letter is the honest truth. I never made police reports on him, i didn't tell anyone because i was embarrassed. Some abuse was physical towards my kids. They have scars. But like i said after getting the DUI earlier this year,he was facing jail time, he has made a complete 360 (no pun intended, but that is funny )spin for the better, no more drinking or smoking weed. We have been in the clear since March 2011.

sorry for the long story but hope this clarifies the situation.

Your views and opinions are greatly appreciated and whatever little insight you can share!

[LIFE'SJOURNEY 970]

Thank you Jim for responding.

Yes the kids were born up here. I was 4 months pregnant when I came up on vacation to shop for them. My ticket was to leave in June, and due to have them end of July and they came 01st May. I can see people (IO) think they are "anchor babies". I did return before the I95 date.

The REF was sent to the lawyer, that's another case by itself he seems to be giving my bad advice and in it for the money! And he only told me about the Background check 2 weeks before the date it was needed.

Yes they wanted more evidence. Originally, I sent 3 affidavits of friends and I sent a 5 page letter. Then they requested a police background check on me. Did that and sent it in.

THE STORY.

Two years later i did return on the same b1/b2 visa which expired 12.18.10 First husband Richard. I knew from back home, and old friend and we reconnected after me and the kids dad broke up. That relationship was a disaster once we got married. He is Bi, and I found that out later into the marriage, because of his persistent request for certain acts. *use your imagination, you are gonna be right* Not to mention he was obsessive-possessive. Not to offend anyone who may read this what i say is for insight only. He is black and i'm white. He wanted to breed, as he put it, mixed kids, I personally didn't want any because I had 2 two year old. So there were a lot of problems till I had enough and kicked him out. He even was using the fact that he could file for me and I would have to stay with him! NO (I am of good character) we never did file, I wasn't comfortable doing that because the marriage was a mess. He is Neutralized and from Trinidad. I can see the "preconceive Intent" however i wanted to go home after my time was up and he didn't want me to go. Because he was very jealous and thought I would have cheated back in Trinidad. He even suggested leaving my kids with him and i go back, just to make sure i didn't leave him.

I met my present husband 6 months before my divorce was finalized. He is an American Citizen born in Philly. We are in Florida, if i didn't mention that! Dated (2006) for 10 months, moved in,(2007) lived together for almost 2 years, then got married (01.09). We separated a year and 9 months later. We were about to file, and things got vile due to financial stress as he was the sole income provider with 3 people to take care of. So i put that on hold, then the lawyer said from what i told him i had a good case for the I360. This should have been my first clue that the lawyer was no good because the paper work sat on his desk for a month.

I didn't ask for a fee waiver, I didn't know about that, till visiting this forum that, that was even possible.

Brian(husband) doesn't know much about immigration, I told him the lawyer is handling it. So he doesn't know about the I360. Sneaky I know. (this is the only guilty thing i have done) but if i tell him he would flip out, and things are going really well now, so i'm trying to let sleeping dogs lie.

Brings me to another question is he gonna find out because I'm going to file the I130???

He has a temper. Whatever i wrote on that 5 page letter is the honest truth. I never made police reports on him, i didn't tell anyone because i was embarrassed. Some abuse was physical towards my kids. They have scars. But like i said after getting the DUI earlier this year,he was facing jail time, he has made a complete 360 (no pun intended, but that is funny )spin for the better, no more drinking or smoking weed. We have been in the clear since March 2011.

sorry for the long story but hope this clarifies the situation.

Your views and opinions are greatly appreciated and whatever little insight you can share!

If you file the 130, and the 485, your husband will know about the 360, BECAUSE you'll will have an interview. This is going to get and be messy.

[milimelo 4,487]

Moving to AOS from student, tourist, work visa.

[sachinky 465]

A cursory look at your circumstances does sound like someone who is willing to try just about anything to get a green card. I hope your attorney is helping you lay out all of the facts in a way that will alleviate the suspicions of the IO. Otherwise, you might be in for a rough time.

+1000 I hope your lawyer is a really excellent one.

If it gets as far as an AOS interview, VJ, I am sure would love a detailed review of it for the archives.

I'd be really worried about a misrep charge on the VAWA application, if I were you. One minute you're claiming that your husband is guilty of extreme cruelty, assault and battery and then turning around and saying things are hunky-dory and you want to reconcile. Again, I am not trying to be mean, just saying how it looks and will look like to the IO adjudicating your case.

[JimVaPhuong 4,863]

You're going to have to sit down and have a talk with your husband about the I-360. There is no way this topic isn't going to come up at the AOS interview, and if your husband doesn't know about it then I can guarantee you will be denied. No doubt about it.

The clincher is that your husband is basically going to have to admit that everything you said with the I-360 filing was true. If he denies it then the IO is going to have to conclude that either he is lying about it not being true, or that you lied when you filed the I-360. Either way, it's a material misrepresentation that would end with a denial of your AOS. If the IO concludes that it was you who lied then you could be kicked out of the US for the rest of your life. Do you think your husband is willing to make a confession that he's basically a very bad person, and that he's essentially guilty of spousal and child abuse?

If your lawyer had done their job then they would have advised you that the I-360 is a bridge that once crossed is very difficult to return. You might want to think seriously about finding a better attorney.

I asked about the fee waiver because you said you and your husband separated for financial reasons. You didn't say you separated because you were being abused.

Nobody can predict how an IO is going to see this. There have been VJ members whose situations appeared far more dire, and they ultimately got approved. There have also been VJ members whose situations appeared relatively mild compared to yours, and they were put through hell and ultimately denied. A lot depends on the particular IO who gets your case, and how they view the circumstances. The best advice is to expect the very worst and be prepared to deal with it. I think a Stokes interview is a very real possibility in your case.

[Know_Ledge 6]

Sorry I can't contribute to this discussion, but just wanted to say that JimVaPhuong, you are always helpful and raise some good points. It's always interesting to read your posts and I know you helped alot of people, including myself. I don't know what you do, I can only assume but Jim and God Bless

[gamer 1]

I have an appointment with another lawyer on the 9th of Nov. I will keep you guys posted and let you know what he say !

[JimVaPhuong 4,863]

I have an appointment with another lawyer on the 9th of Nov. I will keep you guys posted and let you know what he say !

Please do keep us posted. Knowing what happened in your case can often be helpful to other people looking for advice in similar situations.

[gamer 1]

I will thank you so much Jim. They moved the thread, i dont think it fits. More for the I360 !!!

[Ikki 4]

I will thank you so much Jim. They moved the thread, i dont think it fits. More for the I360 !!!

So, what happened to your case? I have a similar situation. I brought ex-wife on a K-1 visa and we had too many problems that I ended up divorcing her and she filed for VAWA. I was never charged with Domestic Violence although she made a report that went nowhere. She never got a green card from me as I withdrew the affidavit of support. I accused her of fraud when did that with USCIS.

A year passed and I saw her again and realized the feelings are still there. We are trying to work things out but we're not sure what we're up against in the future since her VAWA petition is pending.