Just married, ready to apply and alarming call from attorney

[Kebalayesarr 13]

In the case of a k1 visa, you cannot marry anyo ne else but your original petitioner. Period!!! He should've retained an attorney to got a duplicated I90 and remove the condition if a GC were issued.

[Villanelle 4,122]

He did not file to replace the original. I guess my confusion is, why after all these years does he have to prove the marriage was in good faith? Didnt they determine that when they issued him the gc in the first interview? Why does he have to prove it again?

Again, the first GC you are issued upon marriage (starting in 1996) was the conditional GC.

Its a 2 yr card thats issued on a conditional basis.The expiration date of the conditional period (the card) is two years from the approval date. The couple must return in 2 yrs and show they are still married or the immigrant comes back alone and shows proof the marriage is over but it was in good faith.The USCIS requires to remove conditions you provide specific supporting evidence that the basis on which the immigrant obtained conditional permanent residence was not fraudulent. For an application based on marriage, birth certificates of children, joint financial statements, and letters from employers, friends and relatives are evidence that qualify. In a case of divorce, where you are filing on your own, you must show proof of the divorce.

So, sadly, he NEEDS to prove it again.

You did get lucky in the following way. What was suppose to happen was, if he failed to remove conditions 2 years after the card was issued- so 13 yrs ago the card was issued, 11 years ago he should have received a notice stating 'you failed to remove conditions on your card. You are in violation of the law, Your A# is being sent to court. Failing to appear and answer to why you have not removed conditions will result in deportation.' or something similarly worded. He received no such letter and his A# never went to court. So he got very lucky.

He is ABLE to file now and remove conditions albeit EXTREMELY LATE, but there is a provision that will allow him to file late with an explanation, with no additional 'penalty'. His application will be accepted if he files it late with an explanation as to why it is late. It just will not be approved unless he can show the marriage was in good faith and not for immigration benefits.

Which brings us back to your problem of obtaining proof of a relationship/documents from so long ago.

You would have to discuss with your lawyer if it is necessary for your husband to go through the ROC procedure as this is a complicated situation. I am inclined to think so. But with the new legislation being imposed, there may be something that applies here.

If he doesnt go through the ROC process as far as Im aware then hes in essence 'surrendering his GC' He would be giving up his claim to his old GC and he would be back to having no status in the US... It wouldnt matter that he came in on a K1 before. Its like he came in on a K1, he got married, got a GC, failed to remove conditions, shouldve been deported but due to USCIS error was not, so he remained an illegal.

You now married an illegal alien in the US and are seeking to get him status. If you attempt to file for him while hes in the US, its a complex case, there are waivers, or I know before they use to require the immigrant to return home (for long periods of time) unless there was a hardship waiver but I think there was new legislation passed in regards to that (?)

However if he simply leaves the US, Im inclined to think he would be eligible for the spousal visa which takes apx 10 months. Although he did have illegal presence in the US for 11 years, so Im not sure how that fits in (?)

I do want to clarify. I am not by any means a legal expert or an immigration expert. Im just trying to help you with the little bit that I do know. I would suggest that you discuss with the attorney the above scenarios and ask specifically why they would or would not apply and then decide whats best for your family.

If the ROC process is going to take months and months and its unlikely that you would be approved- and a denial would result in you having to apply for a CR1. It may be smarter to simply not invest the time or money into ROC and simply go for the CR1.

So make sure you ask your attorney what if? and what would be our next/other options? Compare time/cost/separation/and likeliest of approval.

Edited January 20, 2013 by capri

[DC85 113]

you are in a good shape , as long as he was approved to a conditional green card means he is not on the k1 visa anymore, which would cause a problem. it not gonna be easy, since it's gonna be his second petition through marriage, even if he is in deportation, the lawyer can request from the immigration court to remove the order so he can do AOS. but as I told you it's gonna be a tough interview, be prepared , start gathering documents, find a good lawyer.

[DC85 113]

People opened a useless issues, he needs to file a new petition. I90,k1, this is doesn't apply to him since he was in conditional GC.

[pieroot 43]

I agree with the previous post. It's a good thing that you have an attorney and it will be their job to explain to USICS about the conditional GC and the previous marriage. They did officially divorce, right?

Just proceed with your current petition and deal with any issues as they come up with a lot of evidence regarding your current relationship. It may be a bit hairy, but I think it will be okay in the end.

[pollypocketz 0]

The did officially divorce. My hope is that we can just file a new petition based on our current marriage and just have to provide an explanation regarding the first marriage. He never physically had the conditional gc or used any of its privileges. He thinks that he can get in touch with the room mate they had when they were married and I think he has some old documents from when they were married. I can hardly think about anything else. This is so scary. He's a good honest hard working person. Its crazy that this process is so complicated.

[Gosia & Tito 199]

Hi everyone. I am hoping someone Can provide some insight and calm my worried mind.

My husband and I were married recently and we have consulted an attorney to help us through the process. I am a USC and my husband is from Peru. He came here in 2000 on a fiancee visa as he married his childhood sweetheart.She came to the US before him. When he came to the US to be with her and marry her, time had passed. after they got married it became quickly apparent that things weren't going to work out. after she came to the US she became an evangelical Christian without telling him. her lifestyle had completely changed from when he knew her and she threw him out and filed for separation shortly after they married. they had already applied for his green card when they separated. his green card arrived but she never gave it to him as they lived separatley and then she filed for divorce. 13 years later we met, fell in love and married. I have been worried since we met about his status and wanted to consult an attorney soon after we married to begin the visa process. we saw the attorney Thursday and she told us everything looked and sounded ok. well last night she called and said she reviewed everything and she thinks that his first marriAge looks like it was not a good faith marriAge due to its length. she asked us to come back Monday to discuss. I haven't slept because I'm worried sick. Can he be denied based on a marriAge that took place 13 years ago? any insight would be appreciated.

That part I'm not understanding is why would there be an attorney involved for an adjustment. Does that mean your husband was in fact aware he was not in status? And if he was aware, Why only now looking into getting in status, meaning Did he not know about ROC? Did he not register his address change with USCIS? How has he been proving to employers that he is legally qualified to work?

[amykathleen2005 441]

The did officially divorce. My hope is that we can just file a new petition based on our current marriage and just have to provide an explanation regarding the first marriage. He never physically had the conditional gc or used any of its privileges. He thinks that he can get in touch with the room mate they had when they were married and I think he has some old documents from when they were married. I can hardly think about anything else. This is so scary. He's a good honest hard working person. Its crazy that this process is so complicated.

So at no time over the years did have pretend to be a resident or citizen? How did he work?

[pollypocketz 0]

He has never had to pretend to be a US citizen. He was 19 years old at the time of his first marriage and spoke no English. He was young, scared, and here with no family. He did not understand the ROC. He isnt looking to get into status. It is me pushing the issue. I am terrified something will happen to him without documentation, and we are thinking about starting a family. I dont want to do that until I know his status is all squared away. I hired the attorney in hopes of doing everything by the book. He has never had a problem finding work. He said one of his previous employers did e-verify and he came back approved. He has a social security number, has paid all of his taxes every year and pays all of his credit cards on time.

[Villanelle 4,122]

Your husband wouldnt show up in e-verify as there was nothing wrong with his a# (it was never reported by USCIS as having done anything wrong as it should have been)

Again, your husband is a very awkward position. There are several paths you can take.

Path 1- File for ROC. He was issued a conditional GC and failed to remove conditions. File to remove them now. Its a difficult case, but with the proper evidence it can be done. In this case, your husband would be issued a 10 yr green card upon successful ROC. Therefore there would be no need for you to file any additional petitions afterwards. He would be a legal permanent resident. Every 10yrs he would renew his card. Or after 5yrs of having his card he could attempt to obtain citizenship.

Path 2- Do not file for ROC, instead your husband is then a k1 visa holder who obtained a conditional GC, failed to remove conditions and was subject to deportation but due to USCIS error was not placed in deportation proceedings. So he is an illegal alien in the US married to a USC. You can attempt to adjust his status while he is the US. This is a complicated case, that may require him to leave the US while his case is being processed and may result in him not being able to return to the US for a long time.

Path 3- Same scenario as above- your husband is an illegal alien married to a USC. Have him leave the country before filing to adjust his status and file for a CR1 to adjust his status along with the appropriate waivers if necessary due to his previous overstay in the US. (this may or may not be possible because he had an 11 yr illegal presence in the US)

I do understand your situation and am very sympathetic to your husband. I also went through the immigration process apx a decade ago when I was young and it was confusing and overwhelming. BUT, they do explain it to you in the interview. That you are receiving a conditional GC. They tell you quite clearly that you must come back in 2 years OR ELSE> (13yrs ago the conditional GCs were still rather 'new', the program was less then 4yrs old, so they were still stressing the importance of the terms of them to the immigrants who received them, both in the interview and in the subsequent papers that accompanied the card in the mail) Also they tell you at the interview in general terms that you are 'approved'. Your card will come in the mail apx 2 weeks or so later. So it would seem he and his spouse attended the interview together (they would have had to- its mandatory) and then immediately afterwards they separated.

If youre going to say- No, he and his spouse were ALREADY separated at the time of the interview then Oh my nooooo. That means he and his spouse committed FRAUD big time by going to the interview together and claiming to be a couple in order for him to obtain the GC and you have ZERO chance at a ROC claim. In fact his orginial card should never have been issued in the first place.

USCIS generally does not accept ignorance as a defense to violating immigration laws, however if you fail to file ROC on time, they do allow you to file late with an explanation. It is one case where you can plead ignorance and get away with it. But you still need to meet the conditions of ROC.

Your other choice is to simply do nothing and let your husband remain an illegal as he has been for the last 11 years. Its risky though. At any time he can be discovered and detained/deported and then what will you do?

[pollypocketz 0]

They were together at the time of the interview. They did separate shortly after the interview which is why he never saw the gc. I really appreciate all of your help. I feel more prepared now to hear what the attorney is going to say, although I'm still sick over it. I guess all is not lost, but it just dosent seem like there is much hope. I guess he will have to get ahold of that room mate and let the lawyer determine if that will be sufficient enough and the documents he still has for the ROC.

[pollypocketz 0]

I posted the following topic in the general immigration forum yesterday.

Hi everyone. I am hoping someone Can provide some insight and calm my worried mind.

My husband and I were married recently and we have consulted an attorney to help us through the process. I am a USC and my husband is from Peru. He came here in 2000 on a fiancee visa as he married his childhood sweetheart.She came to the US before him. When he came to the US to be with her and marry her, time had passed. after they got married it became quickly apparent that things weren't going to work out. after she came to the US she became an evangelical Christian without telling him. her lifestyle had completely changed from when he knew her and she threw him out and filed for separation shortly after they married. they had already applied for his green card when they separated. his green card arrived but she never gave it to him as they lived separatley and then she filed for divorce. 13 years later we met, fell in love and married. I have been worried since we met about his status and wanted to consult an attorney soon after we married to begin the visa process. we saw the attorney Thursday and she told us everything looked and sounded ok. well last night she called and said she reviewed everything and she thinks that his first marriAge looks like it was not a good faith marriAge due to its length. she asked us to come back Monday to discuss. I haven't slept because I'm worried sick. Can he be denied based on a marriAge that took place 13 years ago?

The feedback I received from the other forum seems to be that the lawyer is going to suggest doing an ROC, albeit extremley late. The attorney checked his a number and he has never been placed in removal proceedings or called to court. So my question is, if we try to do the roc based on the first marriage, what types of documentation will he need? I doubt he has anything left from 13 years ago. He cant do aos based on our new marriage?

[TimeTravel 78]

Looks very complicated situation. I assume he had only conditional GC, and he never filed for ROC with waiver. Thats mean he has been in United States as illegal. You really have to look for attorney.

[bigdog 376]

Make sure you have a good and reputable immigration attorney, and good luck with this mess.

[VanessaTony 3,567]

As a K1 entrant you can only get a GC based on marriage to the original k1 petitioner.

You stated that he DID get a GC through her but she refused to give it to him (this is of course illegal but 13 years have passed since then).

Either way he DID successfully AOS his status through marriage to his k1 petitioner. The marriage ended and he had his status revoked.

The issue he now needs to deal with is whether or not he was placed in removal proceedings. If he wasn't, you can file AOS without problem. If he WAS there are more steps to the process.

Long story short - you need to find out whether he was placed in removal proceedings and then proceed accordingly.