oh,the confusion!

[dmartmar 1]

Where are you getting the impression that her marriage was fraud? (my friend) unless you are talking about dove's situation? My friend and her cheating husband did NOT enter the marriage fraudulently-it is merely one of this situations-you know, in life when you *think* you trust someone but alas they dissapoint.Hmmm... but anyway, thanks all for this info, i think my advice to her is to just divorce,go home and see how this new relationship goes before marrying him anyway. She wants to stay,but it probably will be more of a hassle than anything.

The impression comes from:

1. your friend marrying a USC quickly and beginning AOS proceedings right afterwards, when she originally applied for and came in with a tourist visa, with the intent being to visit the US and sightsee, instead of getting married;

2. she's already been seeing, dating and wants to marry another US citizen, even though she's still married to the 1st one;

3. does not want to leave the US (again, even when she came in as a tourist), yet still wants to adjust status through the 2nd husband, divorced or not.

So my question is: if she never had immigrant intent before coming here or by marrying; why would she still want to adjust her status through marriage to another USC? It shouldn't matter to her anyway!

I smell a 2nd fraudulent marriage in the works, or so it seems.

Edited March 5, 2006 by dmartmar

[ChristinaM 0]

One would apply for AOS straight after marriage, if they were going to. Did your friend know the person she married before entering the US, Jennifer? Were they by any chance having an online relationship? That could be important to know.

I don't think we're necessary talking fraud here. Over-excitement, a hasty decision and being on the rebound perhaps, but nothing "smells bad".

[jennifer23 0]

Where are you getting the impression that her marriage was fraud? (my friend) unless you are talking about dove's situation? My friend and her cheating husband did NOT enter the marriage fraudulently-it is merely one of this situations-you know, in life when you *think* you trust someone but alas they dissapoint.Hmmm... but anyway, thanks all for this info, i think my advice to her is to just divorce,go home and see how this new relationship goes before marrying him anyway. She wants to stay,but it probably will be more of a hassle than anything.

The impression comes from:

1. your friend marrying a USC quickly and beginning AOS proceedings right afterwards, when she originally applied for and came in with a tourist visa, with the intent being to visit the US and sightsee, instead of getting married;

2. she's already been seeing, dating and wants to marry another US citizen, even though she's still married to the 1st one;

3. does not want to leave the US (again, even when she came in as a tourist), yet still wants to adjust status through the 2nd husband, divorced or not.

So my question is: if she never had immigrant intent before coming here or by marrying; why would she still want to adjust her status through marriage to another USC? It shouldn't matter to her anyway!

I smell a 2nd fraudulent marriage in the works, or so it seems.

Oh Dmartmar, i knew you'd chime in on this. I'll put my response in your point form language:

1) Where is the law,rules or guidebook that states coming in as a tourist, and then through the natural occurance of socializing with other human beings,meeting someone and deciding to marry is a bad thing? Things change..life happens.Granted it was a quick decision,but probably not that uncommon.

2) Depending on certain "morals" or values,alot of poeple date or see other poeple while enduring a failing marriage,especially when it is intended to end.Again,to each their own as far as opinions go on that..

3) No, she doesn't want to leave the US, because she has grown accustomed to living here and set goals in various areas to be accomplished here,additionally she wants to pursue the new relationship (and i do understand how she may come across as a "relationship jumper" and perhaps unstable,or whatever the impression may be, i get that) Of course,adjusting through a new marriage would be a simple option if it was easily possible,however i'm here more to merely gather information on all options she may have,not just "how can my friend work the system and spin her way out of this situation" like alot of poeple are quick to jump on as an accusation.

To sum up: it DOES matter to her,even if her reasons for coming here in the first place were just to climb the sears tower-change of plans-otherwise my posts wouldn't exist..she would simply divorce,leave,whatever.

One more thing,Dmartmar: who *doesn't* begin AOS preceedings quickly after marrying! And she didn't apply or come in on any visa. As a Canadian,she packed her bags,and told customs exactly what she intended to do..a little vacation.Off she goes,no stamp no visa.I'll assume you forgot she was Canadian,or missed that somewhere.

[Autumnal 25]

This doesn't seem like an easy situation at all.

I think your friend needs to consider how this will look to a neutral, uninvolved party (USCIS). She may have the best of intentions, but this middle perspective (USCIS) has to keep in mind there are those that have legitimate claims and those who do not. The onus lies with her to refute this.

Her first marriage has gone through, she's made an AOS and discovered the USC is cheating on her, right? He'll not contest it. On those grounds, the green card/AOS interview would not likely go through because he does not wish to continue to be married to her. I'm definitely not a lawyer nor highly versed in the ins and outs of the VAWA, but I don't think she can claim this form of petition as a means to stay in the country, especially if she's already in a relationship with another person and separated.

The cleanest route, as already illustrated above, would be to cancel the petition and explain to USCIS that the marriage failed on X/Y/Z grounds. Return to Canada and re-establish a life there while waiting for the divorce. Then, if this second relationship turned out well, pursue it via a K3 or a K1 visa. It would demonstrate good faith and intent in the system.

Flipping out of one AOS and straight into another, I agree, will look suspicious.

[hcj 0]

Jen -- Your friend's situation is VERY different from dovelove's (or whatever his username was). His girlfriend entered on a K-1. USCIS takes the view that K-1s may only adjust status based on marriage to the original person who petitioned for them. Whereas, your friend came as a visitor from Canada and has no such restriction.

I really think your friend should consult with an immigration attorney. IMHO she should be able to adjust status based on a new AOS petition with the new husband, but there might be pitfalls that we posters here do not know about. They don't have to retain the attorney to do the filing, but they should get advice from a qualified professional, with all the facts laid out yada yada.

As for the self-petition, VAWA, all that -- from what you have posted self-petitioning under VAWA doesn't sound applicable. Self-petitioning just based on a "good faith" marriage -- your friend will need to hire a really good attorney and pay $$$ to even have a chance of getting that through. It would be different if she already had a conditional green card and needed to remove the conditions, but you said she had not gotten her green card yet.

IMO their situation is not bad, I'm sure there is a way for her to adjust status, but they should go in for a consultation with an attorney to find out what the best approach to take would be.

[dmartmar 1]

No, she doesn't want to leave the US, because she has grown accustomed to living here and set goals in various areas to be accomplished here,additionally she wants to pursue the new relationship (and i do understand how she may come across as a "relationship jumper" and perhaps unstable,or whatever the impression may be, i get that).

Isn't a tourist defined as and considered to be someone who goes back to his/her home country after traveling to another country with the sole purpose of experiencing and learning its culture, visiting famous landmarks and going sightseeing?

On the one hand, I could see and accept the possibility of a tourist meeting and marrying someone from and in the country being visited unexpectedly, although I assume it happens very rarely and in uncommon cases, since it's the least thing I assume a tourist would do.

On the other hand, say I purposely go to Korea with the sole intent of finding a wife. This being the case, I would no longer be considered being or call myself a "tourist," since I would spend all of my time specifically looking for a woman, instead of using it to go sightseeing or visit landmarks.

Your initial post says your friend's only reason for initially coming to the US was to visit as a tourist, nothing more, nothing less. However, your above post now says she doesn't want to go back to Canada b/c she has goals she wants to accomplish here in the US, has gotten used to US life and wants to pursue a new relationship, even though she's still married. If she is so against adultery and used that as her main reason to justify leaving her husband; why would she then turn around and do the same thing she herself despises so much, moreso if she considers herself a decent woman?

If your friend truly married in good faith and out of love, she should've tried to salvage the marriage in any way possible and ask herself and her husband what could be or are the possible reasons why he cheats, instead of leaving right away and quickly jumping into a new relationship.

Then you ask if she can re-marry, but still be able to adjust her status through her 1st husband. Why would she ask this, if her husband at this point means and is nothing to her? She left him and has been sleeping with another man, so her husband at this point should be completely irrelevant to her.

To the other posters, just mentioning the VAWA waiver, although not necessarily applicable in this specific situation, could make an innocent person spend thousands of dollars for his/her defense or forever tar his/her otherwise unscathed and clean police criminal record.

Edited March 5, 2006 by dmartmar

[diadromous mermaid 36]

No, she doesn't want to leave the US, because she has grown accustomed to living here and set goals in various areas to be accomplished here,additionally she wants to pursue the new relationship (and i do understand how she may come across as a "relationship jumper" and perhaps unstable,or whatever the impression may be, i get that).

Isn't a tourist defined as and considered to be someone who goes back to his/her home country after traveling to another country with the sole purpose of experiencing and learning its culture, visiting famous landmarks and going sightseeing?

On the one hand, I could see and accept the possibility of a tourist meeting and marrying someone from and in the country being visited unexpectedly, although I assume it happens very rarely and in uncommon cases, since it's the least thing I assume a tourist would do.

On the other hand, say I purposely go to Korea with the sole intent of finding a wife. This being the case, I would no longer be considered being or call myself a "tourist," since I would spend all of my time specifically looking for a woman, instead of using it to go sightseeing or visit landmarks.

Your initial post says your friend's only reason for initially coming to the US was to visit as a tourist, nothing more, nothing less. However, your above post now says she doesn't want to go back to Canada b/c she has goals she wants to accomplish here in the US, has gotten used to US life and wants to pursue a new relationship, even though she's still married. If she is so against adultery and used that as her main reason to justify leaving her husband; why would she then turn around and do the same thing she herself despises so much, moreso if she considers herself a decent woman?

If your friend truly married in good faith and out of love, she should've tried to salvage the marriage in any way possible and ask herself and her husband what could be or are the possible reasons why he cheats, instead of leaving right away and quickly jumping into a new relationship.

Then you ask if she can re-marry, but still be able to adjust her status through her 1st husband. Why would she ask this, if her husband at this point means and is nothing to her? She left him and has been sleeping with another man, so her husband at this point should be completely irrelevant to her.

To the other posters, just mentioning the VAWA waiver, although not necessarily applicable in this specific situation, could make an innocent person spend thousands of dollars for his/her defense or forever tar his/her otherwise unscathed and clean police criminal record.

What one person considers morally wrong or unethical does not necessarily make it illegal or against immigration policy. Sorry, dmartmar, but I find most of your post a case of "One man's fish is another man's poison"

[ChristinaM 0]

To the other posters, just mentioning the VAWA waiver, although not necessarily applicable in this specific situation, could make an innocent person spend thousands of dollars for his/her defense or forever tar his/her otherwise unscathed and clean police criminal record.

It doesn't happen very often, but I agree with you on this. I disagree with you on much of your feelings about tourist adjusters (being one myself), but that's ok - I'll live with that

I think people are very quick to jump to the "use the VAWA" answer and forget what a big deal it is.

The self-petitioning spouse,

* Must be legally married to the U.S. citizen or lawful permanent resident batterer. A self-petition may be filed if the marriage was terminated by the abusive spouse’s death within the two years prior to filing. A self-petition may also be filed if the marriage to the abusive spouse was terminated, within the two years prior to filing, by divorce related to the abuse.

* Must have been battered in the United States unless the abusive spouse is an employee of the United States government or a member of the uniformed services of the United States.

* Must have been battered or subjected to extreme cruelty during the marriage, or must be the parent of a child who was battered or subjected to extreme cruelty by the U.S. citizen or lawful permanent resident spouse during the marriage.

* Is required to be a person of good moral character.

* Must have entered into the marriage in good faith, not solely for the purpose of obtaining immigration benefits.

http://uscis.gov/graphics/howdoi/battered.htm#spouse

I do not think that adultery qualifies you for this, although if it's a route one wishes to follow they would be well-advised to speak to a lawyer. I also feel that Jennifer's friend may have trouble with the "good moral character" section as she has found another man she wishes to marry whilst still married to her husband - which could be deemed adultery also. Obviously I don't know the full story and there's likely to be a lot more to it than meets the eye.

Applying for AOS under the VAWA is a very serious thing, and it's not there for just anyone who wishes to divorce and self-petition.

[dmartmar 1]

What one person considers morally wrong or unethical does not necessarily make it illegal or against immigration policy. Sorry dmartmar, but I find most of your post a case of "one man's fish is another man's poison."

I totally respect your opinion, since everyone's entitled to his or her own.

And I never said or imply that whatever a person considers as being morally wrong or unethical would make it illegal or against immigration policy.

[Autumnal 25]

Clmarsh, you make a very good point: Applying for AOS under the VAWA is a very serious thing, and it's not there for just anyone who wishes to divorce and self-petition.

Seriously, rereading this post, the VAWA might apply if the Canadian wife was subject to being beaten, abused and verbally assaulted when her husband stumbled through the door drunk. But if he chooses to sleep in another person's bed, that's not extreme cruelty. Yes, we would all agree it is a terrible situation but not one that may equal the level of physical violence.

[dmartmar 1]

To sum up: it DOES matter to her, even if her reasons for coming here in the first place were to just climb the Sears Tower - change of plans - otherwise, my posts wouldn't exist..she would simply divorce, leave, whatever.

Her having to change plans when marrying unexpectingly should not hide the fact that her true reasons for coming here in the first place were such things as climbing the Sears Tower.

So if the marriage failed, she shouldn't have problems going back to her original plans.

Instead, she wants to know if it's possible to adjust her status through either her current husband and if not, through her possible future husband. Why not ask for directions to the Sears Tower instead?

If she wants out of the marriage so badly and has proof that her husband commited adultery, filing for divorce asap on the ground of adultery and getting it granted should be no problem for her. But instead, she starts seeing and dating another USC right after separation, hoping her husband will be the one filing for divorce on the same grounds.

One more thing Dmartmar: who *doesn't* begin AOS proceedings quickly after marrying? And she didn't apply or come in on any visa. As a Canadian, she packed her bags and told customs exactly what she intended to do..a little vacation.

Which takes me back to my above point of her then not having any problems going back to her original plan of a little vacation, since the marriage didn't work out for whatever reason(s). Again, she instead wants to know if it's possible to adjust her status through either her current husband and if not, through her possible future husband.

[diadromous mermaid 36]

To sum up: it DOES matter to her, even if her reasons for coming here in the first place were to just climb the Sears Tower - change of plans - otherwise, my posts wouldn't exist..she would simply divorce, leave, whatever.

Her having to change plans when marrying unexpectingly should not hide the fact that her true reasons for coming here in the first place were such things as climbing the Sears Tower.

So if the marriage failed, she shouldn't have problems going back to her original plans.

Instead, she wants to know if it's possible to adjust her status through either her current husband and if not, through her possible future husband. Why not ask for directions to the Sears Tower instead?

If she wants out of the marriage so badly and has proof that her husband commited adultery, filing for divorce asap on the ground of adultery and getting it granted should be no problem for her. But instead, she starts seeing and dating another USC right after separation, hoping her husband will be the one filing for divorce on the same grounds.

One more thing Dmartmar: who *doesn't* begin AOS proceedings quickly after marrying? And she didn't apply or come in on any visa. As a Canadian, she packed her bags and told customs exactly what she intended to do..a little vacation.

Which takes me back to my above point of her then not having any problems going back to her original plan of a little vacation, since the marriage didn't work out for whatever reason(s). Again, she instead wants to know if it's possible to adjust her status through either her current husband and if not, through her possible future husband.

While it doesn't seem to apply to the case in point, I'd pose this situation to you to see if you could contemplate if there could be occasions when adultery could become valid grounds for a VAWA petition. Of course, the act of adultery alone does not necessarily constitute extreme mental cruelty, there can be situations when it could. Take for example an alien who has uprooted and moved to the USA to be with her spouse, who openly commits adultery, is not concealing it, foists it upon the spouse, and never intends to end the marriage, but rather subjects his spouse to the emotional turmoil that adultery and infidelity brings. The alien has one option ~ to end the marriage, but in doing so, terminates not only the bona fide marriage that should confer permanent residency status under normal circumstances but also any hope to remain in a country that she has emigrated to and possibly left all else behind. Is she then required to suffer the abusive acts of her husband for a period of 2 years, or leave?

[mawilson 2,133]

It's rather ironic that one cannot divorce and remarry on a K-1 - a fiance(e)/marriage visa -

while a tourist on a B-1, VWP or Canada visa can marry and remarry whomever they please

as many times as they want.

Edited to add that by 'marry' I meant 'marry + AOS'

Edited March 6, 2006 by mawilson

[dmartmar 1]

While it doesn't seem to apply to the case in point, I'd pose this situation to you to see if you could contemplate if there could be occasions when adultery could become valid grounds for a VAWA petition. Of course, the act of adultery alone does not necessarily constitute extreme mental cruelty, there can be situations when it could. Take for example an alien who has uprooted and moved to the USA to be with her spouse, who openly commits adultery, is not concealing it, foists it upon the spouse, and never intends to end the marriage, but rather subjects his spouse to the emotional turmoil that adultery and infidelity brings. The alien has one option ~ to end the marriage, but in doing so, terminates not only the bona fide marriage that should confer permanent residency status under normal circumstances but also any hope to remain in a country that she has emigrated to and possibly left all else behind. Is she then required to suffer the abusive acts of her husband for a period of 2 years, or leave?

You're right! Everything you wrote here doesn't apply to the case in point!

First of all, because adultery is not considered a valid ground for a VAWA petition. I never said it was either.

And second of all, the alien in this case did not uproot and move to the USA to be with her spouse, but rather to come on a little vacation. She married her current husband after being on American soil, having met here.

I would assume that the alien in this specific case could greatly increase her chances of successfully proving bona fide intent when marrying, if she starts divorce proceedings under the ground of adultery, of course being able to prove both. Instead, she herself commits adultery with the hopes of having the husband be the one starting divorce proceedings, so she doesn't risk terminating the bona fide marriage that should confer permanent residency status under normal circumstances, as you yourself wrote.

[diadromous mermaid 36]

While it doesn't seem to apply to the case in point, I'd pose this situation to you to see if you could contemplate if there could be occasions when adultery could become valid grounds for a VAWA petition. Of course, the act of adultery alone does not necessarily constitute extreme mental cruelty, there can be situations when it could. Take for example an alien who has uprooted and moved to the USA to be with her spouse, who openly commits adultery, is not concealing it, foists it upon the spouse, and never intends to end the marriage, but rather subjects his spouse to the emotional turmoil that adultery and infidelity brings. The alien has one option ~ to end the marriage, but in doing so, terminates not only the bona fide marriage that should confer permanent residency status under normal circumstances but also any hope to remain in a country that she has emigrated to and possibly left all else behind. Is she then required to suffer the abusive acts of her husband for a period of 2 years, or leave?

You're right! Everything you wrote here doesn't apply to the case in point!

First of all, because adultery is not considered a valid ground for a VAWA petition. I never said it was either.

And second of all, the alien in this case did not uproot and move to the USA to be with her spouse, but rather to come on a little vacation. She married her current husband after being on American soil, having met here.

I would assume that the alien in this specific case could greatly increase her chances of successfully proving bona fide intent when marrying, if she starts divorce proceedings under the ground of adultery, of course being able to prove both. Instead, she herself commits adultery with the hopes of having the husband be the one starting divorce proceedings, so she doesn't risk terminating the bona fide marriage that should confer permanent residency status under normal circumstances, as you yourself wrote.

I'm not disagreeing, but does one have to plan uprooting in order for it to be uprooting? The commitment to leave it all behind or do what you can from another country later (as in the case of a VWP), or to make those arrangements prior to coming (as in the case of a K-1) can amount to the same thing, surely! If a person enters the country on VWP and then during the validity period finds someone to marry, after making that decision, it is feasible that any strong ties to former homeland are severed ~ resignations from employment, closing businesses, selling homes, moving money etc...

In the case in point, we don't have enough facts to suggest one way or another if VAWA would be applicable. I don't see an extra-marital affair as ominous to potential success under VAWA as you do. It is conceivable that an alien could have significant evidence of emotional upheaval, distress, consultations with aid counsellors, prior to meeting someone else. In fact, it could be that meeting someone else is the by-product of having turned to others for assistance in what could have been a totally intolerable situation, we just don't know in this case.