What to do after beneficiary divorces and remarrys a different applicant

[doves_love 0]

I'm new to the forums and this whole immigration process ... I appreciate the helpful advice and support that I've witnessed in other posts.

I have posted this in a few forums I thought would be the best places to get some advice. Apologies in advance for the multiple posts.

My girlfriend and I met back in late October and started dating at the end of November. It's been a highly emotional and passionate love affair ever since.

She originally came over on a K1 visa to marry her second cousin in March '05. To be honest, it was to be a paper only arrangement in order to gain a green card. They married within the initial required 90 day period in California, but resided in Washington state.

Helen was biometric scanned by USCIS, second week of October '05.

She was given an interview appointment towards permanent residency status (scheduled for December 9, 2005 at the Seattle Field Office), but did not attend due to the need to flee emotional and escalating physical abuse from her husband.

1 month post nuptial, she discovered that her husband has a severe drinking problem, is a drug user and is verbally and emotionally abusive.

The abuse started to escalate to physical threats and acts on herself and the husband's mother who lived with them.

The mother-in-law has taken out a restraining order that I am trying to get a certified copy of from the Clark County, WA. Clerk's Office.

Helen fled to relatives in Florida in late October (just in time for the hurricane). She called the 800 number and told the customer service person that her husband was sick and she could not appear at the December interview. The rep said to write a letter of explanation. Helen did not write the letter nor appear at this interview.

Jump ahead ... we meet through mutual relatives, start dating, fall in love and we'd like to start our own process.

I'm looking for some confirmation and some "go forward" advice on processes from the forum. We've consulted several lawyers and basically, it comes down to the following scenario as I see it.

Get her divorced, paper her existing file with a certified letter explaining what happened, file any other supporting documents (like the current restraining order and copy of upcoming divorce judgment), we get married and start our own process.

At first, we concerned ourselves with the 180 day "out of status" calculations and tried to conservatively estimate when she would have to leave in order to not trigger a 3 or 10 year bar. Our thought was that she'd leave and we'd start a new K1 or maybe a K3 or IR1/CR1 process.

We've since abandoned that line of thinking as our consultations have led us to find out that there is no consistent guide or application of the 180 day calculation, and since ultimately, it should all be forgiven when we marry and file for AOS on our own, we won't endanger her by having her leave.

Can she continue the process on her own? What about filing I-751 on her own? I think we will have trouble establishing that the marriage was genuine as there was no mingling of bank accounts or property, etc.

Also, the husband and mother in law are not helpful and in fact are antagonistic and now blame my girlfriend for the husband's emotional and addictive problems. Their theory is that he "fell in love with her" and was driven to emotional distress when she did not reciprocate feelings.

Is there a helpful step-by-step guide on forms or processes we should be following? What should we be preparing? My assumption is that we start a IR1/CR1 process or start the AOS process after we get married.

I appreciate any and all advice anyone can give us in this matter. Also any tips of words of support form others who have gone through a similar scenario.

Thanks! Jon & Helen

[zyggy 9]

I'm new to the forums and this whole immigration process ... I appreciate the helpful advice and support that I've witnessed in other posts.

I have posted this in a few forums I thought would be the best places to get some advice. Apologies in advance for the multiple posts.

My girlfriend and I met back in late October and started dating at the end of November. It's been a highly emotional and passionate love affair ever since.

She originally came over on a K1 visa to marry her second cousin in March '05. To be honest, it was to be a paper only arrangement in order to gain a green card. They married within the initial required 90 day period in California, but resided in Washington state.

Helen was biometric scanned by USCIS, second week of October '05.

She was given an interview appointment towards permanent residency status (scheduled for December 9, 2005 at the Seattle Field Office), but did not attend due to the need to flee emotional and escalating physical abuse from her husband.

1 month post nuptial, she discovered that her husband has a severe drinking problem, is a drug user and is verbally and emotionally abusive.

The abuse started to escalate to physical threats and acts on herself and the husband's mother who lived with them.

The mother-in-law has taken out a restraining order that I am trying to get a certified copy of from the Clark County, WA. Clerk's Office.

Helen fled to relatives in Florida in late October (just in time for the hurricane). She called the 800 number and told the customer service person that her husband was sick and she could not appear at the December interview. The rep said to write a letter of explanation. Helen did not write the letter nor appear at this interview.

Jump ahead ... we meet through mutual relatives, start dating, fall in love and we'd like to start our own process.

I'm looking for some confirmation and some "go forward" advice on processes from the forum. We've consulted several lawyers and basically, it comes down to the following scenario as I see it.

Get her divorced, paper her existing file with a certified letter explaining what happened, file any other supporting documents (like the current restraining order and copy of upcoming divorce judgment), we get married and start our own process.

At first, we concerned ourselves with the 180 day "out of status" calculations and tried to conservatively estimate when she would have to leave in order to not trigger a 3 or 10 year bar. Our thought was that she'd leave and we'd start a new K1 or maybe a K3 or IR1/CR1 process.

We've since abandoned that line of thinking as our consultations have led us to find out that there is no consistent guide or application of the 180 day calculation, and since ultimately, it should all be forgiven when we marry and file for AOS on our own, we won't endanger her by having her leave.

Can she continue the process on her own? What about filing I-751 on her own? I think we will have trouble establishing that the marriage was genuine as there was no mingling of bank accounts or property, etc.

Also, the husband and mother in law are not helpful and in fact are antagonistic and now blame my girlfriend for the husband's emotional and addictive problems. Their theory is that he "fell in love with her" and was driven to emotional distress when she did not reciprocate feelings.

Is there a helpful step-by-step guide on forms or processes we should be following? What should we be preparing? My assumption is that we start a IR1/CR1 process or start the AOS process after we get married.

I appreciate any and all advice anyone can give us in this matter. Also any tips of words of support form others who have gone through a similar scenario.

Thanks! Jon & Helen

Your friend needs to talk to a immigration attorney about this and request that an I-360 be filed so that she can adjust status based on emotional and physical abuse. You friend can adjust based on this petition. However, she could no longer file an I-485 based on marriage to a new husband as adjustment can only be performed by marriage to the original petitioner.

[Mand 1]

Just asking, because I don't know much about this stuff (Thank God) but is the husband's point of view taken into account for the I-360 form you mentioned? Just that the poster stated the following:

it was to be a paper only arrangement in order to gain a green card.

Also, the husband and mother in law are not helpful and in fact are antagonistic and now blame my girlfriend for the husband's emotional and addictive problems. Their theory is that he "fell in love with her" and was driven to emotional distress when she did not reciprocate feelings.

Just curious if both sides of the story are taken into account...

[zyggy 9]

Just asking, because I don't know much about this stuff (Thank God) but is the husband's point of view taken into account for the I-360 form you mentioned? Just that the poster stated the following:

it was to be a paper only arrangement in order to gain a green card.

Also, the husband and mother in law are not helpful and in fact are antagonistic and now blame my girlfriend for the husband's emotional and addictive problems. Their theory is that he "fell in love with her" and was driven to emotional distress when she did not reciprocate feelings.

Just curious if both sides of the story are taken into account...

However, if the purpose of the marriage it was only to get a GC.. why didn't the OP stay through til they actually got the GC.

The I-360 does not take anything regarding the husband into account. However, you just can't file an I-360... you have to have independent documentation of the abuse for this type of adjustment to be successful by either an assessment by mental health professionals, police reports, photographs, letters from physicians who have seen the abuse, etc.

It should be noted that if the I-360 is filed, the USC spouse is no longer involved and is an affidavit of support is no longer in force.

Edited March 3, 2006 by zyggy

[john_and_marlene 162]

I hate duplicate posts

[Dixie_Peach 1]

sorry to hear that this has happened... wishing ya'll the best... the only help that i could give would be to say that ya'll need an immigration attorney... take care and keep us posted as to what happens....

[doves_love 0]

Thanks for all the feedback on this and other forums ... let me try and clarify based on some of that feedback.

She came in good faith to marry the USC, though it was certainly not based on the thought of a long term marriage. Both parties were aware and this was not a scam of the USC. She was initial treated very well. In fact the marriage was consummated based on the initial time together. That all soon changed dramatically.

While I agree that the original process and petitions would probably have been denied, not the least of which is the fact they are second cousins, we are operating now under the assumption that the lack of attending the interview in December has triggered a process that USCIS will deny the application and probably close the case.

The I-485 app was the only additional paperwork that was submitted ... no application for SSN or a work permit.

We met with 3 lawyers.

The first said try to work it out with the USC (ostensibly, continue the fraud) or try VAWA, though evidence is thin of actual abuse -- he made an interesting point that those trying to perpetrate fraud or whom have no resources to leave are unfortunate enough to have plenty of evidence of abuse. Those who are able to leave under threat of actual abuse, often don't have evidence to back it up. Just anecdotal reports.

Luckily, she left before physical violence occurred. She had had enough of the emotional violence and physical threats and throwing things and the drinking and the drugging and the disappearing for days at a time. The mother-in-law took out a restraining order that I am getting a copy of to back our filings to USCIS.

The second lawyer brought up trying to calculate the 180 days and exit the country to keep from incurring the 3-10 yr. bar, and then starting another K1 or K3/IR1/CR1 process. As I said in my previous post, we've given up that course of action as we felt that we have either already overstayed past 180 days (or soon will) and we do not plan on having her leave the country in order to try and be a "test case" for interpreting the rules.

The 3rd lawyer who does primarily corporate immigration law (friend of a friend) suggested a "realistic approach". I had asked him how we could "work the system" in order to keep her here as long as possible, clean up / close her current application as easily as possible, get her a divorce and remarry her as quickly as possible, begin our own permanent status process as soon as possible -- all with keeping our separation down to the smallest time possible.

He said get a divorce and "paper" her current file with a certified letter and anything that would help support future process on why the original process was abandoned.

He advised that the overstay bar would only be triggered if she left the country. So keep her here, get married on our time line and then begin our process.

My confusion is, what process do we start after we get married? What forms do we file?

We've joked ironically with each other that we wished we'd met earlier so she never had to go through what she did ... that the process would be more legit and less hardship. We love each other very much and our mutual extended family is ecstatic that we found each other through all of this.

This is a start of a beautiful relationship that is marred by a legal entanglement that we'd like to make right ... even if it stretches the interpretation of the original intent of the immigration process. Ostensibly she will be here out of status for a bit, we will get her divorced (a process that is underway), get married ourselves and then proceed with a change of residency and AOS.

I appreciate any concrete assistance and guidance as to forms and processes you may be able to offer.

Jon & Aghavni (which means 'Dove' in Armenian)

[zyggy 9]

Thanks for all the feedback on this and other forums ... let me try and clarify based on some of that feedback.

She came in good faith to marry the USC, though it was certainly not based on the thought of a long term marriage. Both parties were aware and this was not a scam of the USC. She was initial treated very well. In fact the marriage was consummated based on the initial time together. That all soon changed dramatically.

While I agree that the original process and petitions would probably have been denied, not the least of which is the fact they are second cousins, we are operating now under the assumption that the lack of attending the interview in December has triggered a process that USCIS will deny the application and probably close the case.

The I-485 app was the only additional paperwork that was submitted ... no application for SSN or a work permit.

We met with 3 lawyers.

The first said try to work it out with the USC (ostensibly, continue the fraud) or try VAWA, though evidence is thin of actual abuse -- he made an interesting point that those trying to perpetrate fraud or whom have no resources to leave are unfortunate enough to have plenty of evidence of abuse. Those who are able to leave under threat of actual abuse, often don't have evidence to back it up. Just anecdotal reports.

Luckily, she left before physical violence occurred. She had had enough of the emotional violence and physical threats and throwing things and the drinking and the drugging and the disappearing for days at a time. The mother-in-law took out a restraining order that I am getting a copy of to back our filings to USCIS.

The second lawyer brought up trying to calculate the 180 days and exit the country to keep from incurring the 3-10 yr. bar, and then starting another K1 or K3/IR1/CR1 process. As I said in my previous post, we've given up that course of action as we felt that we have either already overstayed past 180 days (or soon will) and we do not plan on having her leave the country in order to try and be a "test case" for interpreting the rules.

The 3rd lawyer who does primarily corporate immigration law (friend of a friend) suggested a "realistic approach". I had asked him how we could "work the system" in order to keep her here as long as possible, clean up / close her current application as easily as possible, get her a divorce and remarry her as quickly as possible, begin our own permanent status process as soon as possible -- all with keeping our separation down to the smallest time possible.

He said get a divorce and "paper" her current file with a certified letter and anything that would help support future process on why the original process was abandoned.

He advised that the overstay bar would only be triggered if she left the country. So keep her here, get married on our time line and then begin our process.

My confusion is, what process do we start after we get married? What forms do we file?

We've joked ironically with each other that we wished we'd met earlier so she never had to go through what she did ... that the process would be more legit and less hardship. We love each other very much and our mutual extended family is ecstatic that we found each other through all of this.

This is a start of a beautiful relationship that is marred by a legal entanglement that we'd like to make right ... even if it stretches the interpretation of the original intent of the immigration process. Ostensibly she will be here out of status for a bit, we will get her divorced (a process that is underway), get married ourselves and then proceed with a change of residency and AOS.

I appreciate any concrete assistance and guidance as to forms and processes you may be able to offer.

Jon & Aghavni (which means 'Dove' in Armenian)

Unfortunately there is no easy way to go about this...

She cannot just marry you and have you file the I-485 as she can only sucessfully adjust based on marriage to the original petitioner.

You have a choice...

She can try the I-360 and see what happens and stay or

She can go home and you can file a I-129F to get her to come to the US as your fiancee. However, if she stays past the 180 days, you'll have to apply for a waiver for her to come..

So lawyer 1 and lawyer 2 were both right, lawyer 3 was way off... they can't tell you what to do and neither can we... but those are your choices...

Best of luck with your decision.

[TracyTN 237]

MUST we have 4 different threads on the exact same topic?