FAQs to support the New Change in Family Status Forum

[diadromous mermaid 36]

As most of you know, Ewok added a new forum designed for questions regarding major changes in family structure and its potential immigration consequences. I've been working on FAQs for this new forum. Since the situations that fall into the forum are broad, I've separated the FAQs into several classes. First Divorce/Marriage Termination issues, then Death of the Petitioner; VAWA situations and finally one oriented to "What the USC can do?". It's a work in progress, so I'll be posting the other sections on this thread as they become complete.

Anyway, here is the First in the series of FAQs, for your review, suggestion, correction..

THE IMPACT OF CHANGES IN FAMILY STATUS ON AN ALIEN’S IMMIGRATION PROCESS

The marriage-based immigration process can take at least a number of years to complete. But what if the journey is interrupted by a divorce, the untimely death of the US citizen petitioner or even abuse?

Divorce laws are complex and the manner in which family law issues are interpreted by each state’s court can vary. For general divorce information consult a family law professional in your area. The impact of a finalized divorce varies depending on the alien’s immigration status at the time of the event. These FAQs provide information at various stages in the immigration process where the occurrence of a major change in family structure can have an effect on permanent residency. Of course, it is always advisable when dealing with issues related to immigration, to consult a competent immigration lawyer. (http://www.aila.org)

A ~ GENERAL

Q: What is a divorce?

A: A divorce is the legal termination of a marriage, adjudicated by the court.

Q: How does an annulment differ from a divorce?

A: An annulment is the legal process that is initiated to declare a marriage invalid. This is accomplished by establishing that the requirements for a valid marriage were not met.

Q: What conditions would permit a marriage to be annulled?

A: State law varies, but as a general rule, in order for a marriage to annulled, the party initiating the action must demonstrate that one or more of the following conditions exist

·The parties are closely related to each other by blood

·One of the parties to the marriage was still married to someone else.

·A party was below the age of consent. In some states, minors need a court order of emancipation or parental consent to become married.

·A party was not of sound mind

·A party was unable to engage in heterosexual intercourse

·A party was forced to marry through acts of, fraud, trickery, misrepresentation, concealment, coercion or duress

·The parties failed to follow local procedure with regard to possible requirements for licensing, blood tests, waiting periods and/or witnesses.

If you have reason to believe your marriage is invalid, please consult a family lawyer in your area.

Q: Which types of aliens may be adversely impacted by divorce or annulment?

A: There are situations where the process to secure permanent residency can involve additional or distinct requirements as a result of divorce or annulment. For example, the following situations may be impacted by a divorce or an annulment:

·An alien that came to the US on a K visa and has not yet adjusted status

·An alien that gained residency through marriage to a US citizen, and is still satisfying the conditional, two-year residency period

·An alien that gained residency through marriage to a US citizen less than a year ago.

·An alien beneficiary who married the principal immigrant a short time before the couple immigrated, and is divorcing not long after they immigrated.

·An alien spouse or child of an abusive US citizen or LPR that is still awaiting conferment of legal permanent residency through the marriage that created the relationship.

·A person who immigrated as the spouse of a person granted asylum, in asylee status, and has not yet been awarded permanent resident status.

Q: If I am divorced or my marriage is annulled, what happens to my immigration status?

A: This depends entirely upon circumstance and the stage at which this event occurs.

Q: I am separated from my US citizen spouse. Is my marriage legally terminated as far as USCIS is concerned?

A: The term "separation" can mean either a physical separation, as in living apart; a "legal separation," recognized by some states where the parties agree in writing on the terms of separation that is accepted by the court; or the time-period required by some states when parties must live apart prior to becoming eligible to divorce.

As a general rule a physical or legal separation does not necessarily constitute a legal termination of the marriage for immigration purposes, even if neither party is intending to cohabitate again. Caveat: There are some situations where a legal separation is a legal termination of a marriage for immigration purposes. This occurs when extant state law automatically converts legal separations into divorce after a specific period of time. New York is an example. If you have any question as to the ramifications of separation in your state, please confer with a qualified immigration specialist.

An alien that is separated, either physically or legally, may need to perform specific requirements for immigration purposes.

B ~ AT THE ENTRY STAGE BEFORE APPLYING FOR ADJUSTMENT OF STATUS

Q: I arrived on a K-1 visa, married the petitioner within 90 days but the marriage ended in divorce before we applied for adjustment of status, can I remain in the USA?

A: If the marriage is terminated by divorce before the couple apply to adjust to permanent resident status, the beneficiary and any derivative beneficiary (K-2) will not be eligible for permanent resident status through the former marital relationship. The USCIS requirement for an alien that entered on a K-1 visa is that marriage be concluded to the original petitioner within 90 days and that adjustment of status is possible only through the initial petitioner.

Q: I arrived on a K-1 visa. Things didn’t work out and I didn’t marry the US citizen petitioner within 90 days. Can I remain in the USA?

A: If the alien were to remain beyond the expiry date, he or she will be out of status. The terms of the K-1 visa are to provide the alien to enter the USA in order to conclude marriage to the petitioner within the 90-day period. If a marriage is not going to occur with the petitioner, the alien is to leave the country prior to the expiry date of the visa.

Q: I came to the US with a K-1 (fiancé) visa, but the relationship was not working. I married another US citizen. How do I adjust my status to permanent resident?

A: The restrictions of the K visa call for the alien beneficiary to marry the original US citizen petitioner in order to be eligible for adjustment of status. Since the alien did not marry the petitioner, the alien cannot adjust status and must return to his or her native country.

Q: I arrived on a K-1 visa, married within 90 days, but have not adjusted status. It looks as if we will divorce. Can I remarry and adjust status through another US citizen spouse?

A: An alien that entered the USA on a K-1 visa may not adjust status to permanent residence by any means other than through the marriage to the original petitioner.

Q: I entered on a K-3 visa, but the marriage is failing, can I remain in the USA?

A: The K-3 visa permits an alien, married to a U.S. citizen, to enter the United States and await approval of the I-130 immigrant petition filed by the U.S. citizen spouse. An alien that came to the USA on a K-3 visa is not eligible to change status to any other nonimmigrant status, nor may he or she adjust status to permanent residence by any means other than by way of the marriage to the US citizen petitioner/spouse.

Q: I have not yet adjusted status, but my US citizen spouse has initiated divorce, will my K-3 status remain in effect for 2 years?

A: No. As a K-3, authorized stay will expire thirty days after divorce from the United States citizen petitioner.

Q: What if the petitioner/spouse refuses to file the adjustment of status application?

A: Typically, the marriage-based petition requires that the parties be in a viable marriage. But if the spouse (either an US citizen or LPR) refuses to file the adjustment of status application or withdraws the application prior to its adjudication, provided the alien meets the eligibility requirements, he or she can self-petition as an abused spouse under provisions of VAWA, without the help of the spouse. Lack of physical battery does not necessarily preclude a self-petition as an abused spouse under the very liberal immigration laws. A consultation with an immigration attorney is strongly advised.

section relating to After Adjustment of Status to follow........once we've discussed these..

[raymaga 25]

Very good!!!! Very well written and understandable.

[Erichu 0]

Hey, great job here. I have been reading a few of the threads in this new forum and it is VERY eye opening to say the least.

These FAQs are going to move into that thread as a sticky post right?

Thanks for the great contributions!!!

Edited October 26, 2006 by Erichu

[diadromous mermaid 36]

Hey, great job here. I have been reading a few of the threads in this new forum and it is VERY eye opening to say the least.

These FAQs are going to move into that thread as a sticky post right?

Thanks for the great contributions!!!

Thanks erichu and raymaga.

"Going, Going, Gone!"

I am bumping this thread to elicit any corrections, recommendations, suggestions so that we can make this information available in a FAQ section soon. Need some feedback, prior to doing so. Any and all revisions are welcomed.