K1 Visa, got married but marriage failed before AOS

[Villanelle 4,122]

The op stated he runs his own small business, hence there is no one to check his SS card and see that it is imprinted with the words 'valid for work only with DHS auth". That is how he has been working illegally.

BUT if he follows the advice above and reconciles with his wife and files an AOS now, he would have to submit the complete package which would include the 864 from his wife. If during the last 3 years he and his wife had been filing joint returns UCIS would see his income on it and know he had been working illegally.

[KayDeeCee 4,893]

The op stated he runs his own small business, hence there is no one to check his SS card and see that it is imprinted with the words 'valid for work only with DHS auth". That is how he has been working illegally.

BUT if he follows the advice above and reconciles with his wife and files an AOS now, he would have to submit the complete package which would include the 864 from his wife. If during the last 3 years he and his wife had been filing joint returns UCIS would see his income on it and know he had been working illegally.

Overstay and working without authorization are usually forgiven for the spouse of a USC applying to adjust status. Misrepresentation or claiming to be a USC will not be forgiven though. However, the IRS will still want their money so if he hasn't filed taxes on the money he has earned, he needs to. If he filed for AOS, he would just need to be honest about the work and why he never filed before now.

Since his current girlfriend is the one that started this thread, I think filing for AOS with his present wife is pretty much a moot point though. Pretending to reconcile just so he can adjust status and get his green card would be fraud.

[Justine+David 218]

ohhhh, I thought she was a friend of his. Kloe: best thing to do is to pack your bags and move to Germany with him, wait out the 10 year ban, and then move back to the USA (or file a hardship waiver if you have just cause like a severe medical condition that you can't get treated in Germany, which sounds unlikely since Germany has excellent healthcare). K1 petitions have special rules in that he cannot adjust status based on ANYONE but the original petitioner.

Or seriously re-evaluate your relationship and ask yourself if you want this in your life. Think hard on it--do you want to be married with this man, 10 years down the line have children, he gets deported, and you're left alone in the states with a house and children alone? You need to be prepared for the consequences.

[Boiler 45,541]

She is dating, no mention of marriage.

[Kloe36 0]

I cannot thank all of you enough for your help. I had a hard time believing that the rules were that black and white. It is a hard pill to swallow. I don't know where I stand or what I am going to do; but I have to let you know that getting so many replies has at least cleared the smoke. You are all very kind and helpful with a difficult part in my life...thank you.

[Justine+David 218]

She is dating, no mention of marriage.

yeah, but if she is on an immigration website largely about engaged and married couples asking about his immigration status, it does imply a certain amount of thought into the future. In any case, I never dated anyone I didn't seriously consider marrying. I know that's not the case for everyone, but I would not want to waste even just a few months on someone that I didn't see myself with in the future and she has even more to lose than the average person if she does or already is seriously involved with the man.

[Villanelle 4,122]

working without authorization are usually forgiven for the spouse of a USC applying to adjust status.

Honestly I dont know if thats true or not, so I would suggest the OP consults a lawyer for clarification.

If so, then in clear black and white his choice would be-

- go back to Germany. Since he overstayed his visa he has a 10 year ban before he can come back to the US.

- 'pretend to reconcile' with his wife (which is fraud) submit his AOS paperwork (which if you read the guides includes her filing out an 864 form and accompanying him to an interview) and this is only an option if the above is correct that working w/o auth is forgiven when you apply for AOS.

-legitimately reconcile with his wife and submit his paperwork- which is not fraud.

- continue living and working in the US as an illegal and hope hes not caught and subsequently deported.

[KayDeeCee 4,893]

Honestly I dont know if thats true or not, so I would suggest the OP consults a lawyer for clarification.

I had already suggested they seek a qualified immigration attorney in an earlier post. It is true. You can research it.

[Boiler 45,541]

On the facts stated there would be little point, anyway it is the BF that has an issue and he does not seem bothered.

[kzielu 1,149]

I cannot thank all of you enough for your help. I had a hard time believing that the rules were that black and white. It is a hard pill to swallow. I don't know where I stand or what I am going to do; but I have to let you know that getting so many replies has at least cleared the smoke. You are all very kind and helpful with a difficult part in my life...thank you.

Easiest path to become legal is divorce, get married to you (if that's what you are thinking about), leave and file for CR-1 with subsequent waiver. Not easy, but totally doable especially if you hire a good lawyer for that.

[Kloe36 0]

Hello all. I just wanted to shed some light on a few things that have been discussed to help shed some light on the situation. I don't date casually so my long term goal would be something serious and quite possibly marriage. We have talked about mutual long term goals. Again, I wish I could answer the "why didn't he do this or that" but I honestly don't know and don't want to speak for him. I can say that he is a very kind mind, always tries to be safe, helpful to all of his neighbors and friends, and seems to pay quite a bit of attention to American ways and laws. I know he is currently breaking the law by not filing for his AOS and he does too; but I don't think he is trying to play games. He is, well we both are, scared about what the future may bring. One person did suggest to him about flying under the radar until he gets caught and he doesn't want to do that. He does run his own business. It is small but it is his and he works hard. He wants to see it grow and succeed so knowing his future in America may be ending soon, planning ahead is very difficult. Likewise with our relationship...we get along fabulously and we dream about our future. That was until he found out he may not be able to stay. I have children so simply moving out of the country is not simple at all. Our relationship has taken a sad turn. Neither of us wants to just give up and walk away. In the same token when we start to talk about us (including my kids) it usually ends up with tears and soft spoken "what do we do".

[Villanelle 4,122]

I had already suggested they seek a qualified immigration attorney in an earlier post. It is true. You can research it.

Oh my. I did not mean to imply that your statement was not true, just that I had no idea if it was or not and therefore wasnt comfortable endorsing it without that knowledge. Personally I have my own set of personal and immigration issues to deal with and while I dont mind contributing to the forum on topics that I do have knowledge about I dont have time to research others issues...

Since you are confident that overstaying a visa and working w/o auth can be forgiven then as kzielu posted he should be able to divorce, marry the OP and file for a CR 1.

What does bother me however is the fact that he has been running a small business for many years, and in the OPs words "seems to pay quite a bit of attention to American ways and laws" yet is claiming ignorance in not knowing he had to file for AOS or had to have his own EAD. If his small business involves him having employees, he would have had to verify his employees legal status in order to employ them. That should have set off something in his head about his own legal status. The same thing with obtaining a DL. If the OP reads through the threads about K1 immigrants struggling to obtain DLs she will see its a hard process. You need to show proof of your legal status. I do not know how he obtained one with out committing some type of fraud. So theres something hes not her or hes not as upstanding as she thinks.

[KayDeeCee 4,893]

Since you are confident that overstaying a visa and working w/o auth can be forgiven then as kzielu posted he should be able to divorce, marry the OP and file for a CR 1.

I am not confident that it will be forgiven if he divorces and marries someone else because it won't. It would typically be forgiven when married to a USC and adjusting status, as I stated. He did not and will not be adjusting status with his current wife. They need a good immigration lawyer to discuss whether or not his only infractions were the overstay and working illegally, and if he could even qualify for a waiver if they went the CR-1 route.

[Caryh 5,206]

The same thing with obtaining a DL. If the OP reads through the threads about K1 immigrants struggling to obtain DLs she will see its a hard process. You need to show proof of your legal status. I do not know how he obtained one with out committing some type of fraud. So theres something hes not her or hes not as upstanding as she thinks.

The move to require proof of immigration status in order to get a driver's license is a recent movement. Four years ago his state may have had nothing on the books about immigration status. My wife had to prove her status to get a license, first an I-90 to get the state ID, then an EAD to get her driver's license. They had an immigration check with date good until on her driver's license. Once we went back with her two year green card, they totally removed that note. I'm doubtful she ever has to show her status again now that the date has been removed from her driver's license.

[Villanelle 4,122]

DL are issued by each respective state under whatever guidelines the state wishes. I do agree that it is possible that four years ago the state he lived in did not have a regulation in place requiring applicants to prove their legal status in order to procure a DL but I feel it is highly unlikely.

(I am basing this on the fact that 10 years ago my ex husband needed to show proof of his legal status to obtain his DL in the state he currently lived in, then 2 years later in the state he subsequently moved to. As well as the fact that there were many members of his family and acquaintances of his that were illegals spread through out the country with phony docs, if it was as simple as, hey lets go to 'Iowa' because they dont check your status and will give you a DL, word would have spread through out the 'illegals underground network')

And you are correct- once you establish lawful legal presence (by showing something w/o an expiration date like a GC or birth certificate) you only show it to them once. After that you simply renew you DL by signing a form and taking an eye exam and paying the renewal fee.