:-( Bad decision... Looking for best solution

[pelyterpal 0]

Hello Everyone!

I got myself into a pretty crappy situation, and now trying to see what is best way out of it...

My story in short:

I came to the US in May 2011 on a J1 Visa for one year. The place I had my training I've met a girl, we fell in love, and then came the day when I had 2 weeks before my DS-2019 form expires. We both were in love, and didn't want to separate, we felt we had future together. I still had a month left of my visa. We decided that the best way to stay together is to marry and go through the whole immigration process. So we got married, moved in together and started gathering all evidences and proof of our relationship. My visa ended in June 30th, so I was already overstaying when we filed all of the immigration forms.

However after our marriage and living together I started to see the true side of my wife, our relationship became terrible, and I've tried my best to fix it, but nothing worked. (My point here is not proving that it's only her fault.) I started doing a lot of research of the emotional abuse and other strange things that I was going through and it turns out clearly that my wife has Narcissistic Personality Disorder, which is part of the Borderline Personality Disorder and it is extremely hard to deal with, when you are in a relationship. I gave up all my chances of fixing our relationship when I've noticed her committing infidelity. I've proven it to her, but she never admitted it and kept making up stories about it.

I was going through a large deal of emotional pain and disappointment. However I can't keep dwelling over these and need to do my best to put an end to the relationship, the whole immigration process and moving on with my life.

So my AOS is pending, I got done with the Biometrics appointment and I have our interview date on 28th of September. Even though our relationship is very dysfunctional, she still seems to hold on to me in a strange way. But anyways I have no intention of staying in this marriage anymore, we have to divorce. I'm thinking about a no fault divorce, with irreconcilable differences, make it as simple as possible for both of us. I have no idea if she would show up at the interview with me or not. And on the other hand, I don't want to go to an interview and fake something that is not real. We still live in the same house, we still have a joint bank account, we still pay for some bills together but we fell apart totally, don't communicate much and only argue...

So basically I am overstaying, and stuck with a marriage that is not working with AOS pending.

I am seeing a lawyer this Tuesday and see what he has to say. I was wondering if anybody has any advice on how to come out from this situation with losing as least as possible? My main aim is not getting a green card and stay in this country. My aim is to fix this "unfinished business" then move on without risking my chances of ever coming back to the US.

Thank you for your time!

[Lornaevo 48]

Unfortunately, that process who are really married to their spouse and intend to do so. You can go ahead and get a divorce but you should also withdraw your petition. Because wanting a divorce and still applying for a green card based on marriage is fraud. Even if she shows up to the interview I don't see how you will pass the interview without lying to the IO.

[Harpa Timsah 13,258]

The time that you had pending AOS was not overstay, so the only overstay you have is between the end of your visa and when you sent in your paperwork. You can go home anytime, and can get a divorce here while abroad, or maybe even get a divorce in your home country. It sounds like you only overstayed a month or so so you shouldn't have a ban.

[JohnR! 5,495]

My main aim is not getting a green card and stay in this country. My aim is to fix this "unfinished business" then move on without risking my chances of ever coming back to the US.

Thank you for your time!

As the other poster said, all you need do is file for a divorce asap and withdraw your petition for AOS. If you do it yourself, it will be canceled without prejudice, the implication of which is that if should not represent an impediment for you to return to the US in the future.

[JimVaPhuong 4,863]

Both spouses must attend the AOS interview. You won't be approved if you attend alone unless you have an air-tight reason for her not attending, such as she's in the US military and deployed overseas.

There's a general requirement that the relationship has to be viable at the time the immigration benefit is approved. Some courts, including the BIA, have found that this requirement doesn't necessarily apply to someone who arrives with a K1 visa because slightly different rules apply, but the requirement applies to everyone else. Unless you and your wife intend to go to the interview and put on a show for the immigration officer then you'll be denied.

There is a major loophole in the law regarding this. You can apply for adjustment of status, even if your marriage is deteriorating or has already ended in divorce, if your basis for adjusting status is abuse (VAWA). You'll need evidence from a credible third party that the abuse occurred. Emotional abuse is one of the most difficult to prove. If you're divorced at the time then the divorce must have occurred within two years of filing, and the abuse must have been the primary reason for the divorce.

If your plans are to return to your home country then I recommend you withdraw your adjustment of status application and return home. You've already screwed up your chances of ever using the VWP again because you overstayed.

[pelyterpal 0]

The time that you had pending AOS was not overstay, so the only overstay you have is between the end of your visa and when you sent in your paperwork. You can go home anytime, and can get a divorce here while abroad, or maybe even get a divorce in your home country. It sounds like you only overstayed a month or so so you shouldn't have a ban.

Yes, my visa ended on June 28th and the USCIS recieved all petitions July 20th, which means I haven't overstayed a month.

[mrsGORE 13]

sorry about your situation...be strong and hope you'll do the right thing:-)

[pelyterpal 0]

There is a major loophole in the law regarding this. You can apply for adjustment of status, even if your marriage is deteriorating or has already ended in divorce, if your basis for adjusting status is abuse (VAWA). You'll need evidence from a credible third party that the abuse occurred. Emotional abuse is one of the most difficult to prove. If you're divorced at the time then the divorce must have occurred within two years of filing, and the abuse must have been the primary reason for the divorce.

If your plans are to return to your home country then I recommend you withdraw your adjustment of status application and return home. You've already screwed up your chances of ever using the VWP again because you overstayed.

I don't think I should go down that road, and start proving emotional abuse and start VAWA application. It would take a lot of time and energy and more arguments and fighting.

I think we should have a no fault divorce, then I will withdraw my application and return to my home country.

Hopefully I won't have any more losses but the emotional side of the situation, the financial costs of the paperwork and gathering everything together for filing. And hopefully I won't risk the chance of later coming back to the US.

What are your opinions?

[Harpa Timsah 13,258]

You won't be able to use the VWP anymore, but less than a month overstay, and for a good reason, should make your case decent for a B2 or other visa. The fact that you leave after your marriage ended is also a plus for you for returning. (sorry about that, by the way).

[pelyterpal 0]

Thank you so much for your answers and empathy.

Another question came to my mind actually:

Does anyone know how much time do I have to leave the country after withdrawing my AOS application?

[Penguin_ie 5,996]

*** Moving from AOS from Family Visa to Effects of Major Changes ****

[bigdog 376]

Good Luck.

[VanessaTony 3,567]

Thank you so much for your answers and empathy.

Another question came to my mind actually:

Does anyone know how much time do I have to leave the country after withdrawing my AOS application?

Usually about 30 days. I suggest you get everything ready to leave and THEN withdraw.

[Kathryn41 3,205]

You will also want to make sure that your 'overstay' does not amount to more than 180 days as that would incur a 3 year ban upon re-entry. You mentioned you have the interview in September. You will want to check with the lawyer to determine when USCIS will start to determine an overstay if the AOS is withdrawn. Does it act as if it were never filed and the time spent waiting then becomes part of the overstay or does the out of status time begin to accumulate on the date of the withdrawal? That will be an important consideration in determining how much time you will have in the US to effect your final business and leave without incurring a ban.

Good luck to you.

Edited September 2, 2012 by Kathryn41

[pelyterpal 0]

I have a couple more questions.

What is the way of withdrawing my application for AOS?

Inform USCIS by mail?

According to my researches even though my divorce would be very simple with almost no common assets and its very short period it would still take months to go through. Should I send USCIS a copy of the divorce petition?

I can't wait to go back to my cou try but I need to "finish up" here. Should I wait to leave here until our divorce is final?