divorcement

[Ian H. 207]

Thank you for backing me up, I truly appreciate it. People have been all over me lately because they assume I am just making stuff up. I may have been incorrect as to the technicalities of some of the posts I made, however I always tell the OP to consult an immigration lawyer if the issue is too complicated and don't make my statements explicit to the extent that they should be taken as 100% fact. I am just trying to help people out because I know people who have faced immigration problems and it is a very frustrating, painful, and terrifying experience. I would never get someone's hopes up which is why I make it as clear as I can that while not impossible, it would be difficult. Again thank you for backing me up!

HArpa Timsha the information given by ianhalliwell 186 is correct.The BIA (Board of Immigration Appeals ) and Ninth Circuit Court of Appeals ruled that a K-1 Fiancé(e) visa holder who married the petitioner, and the couple gets divorced while their adjustment application is pending; before the green card is granted , the alien still can get the GC. We have many decisions regarding this matter since 2006.

Freeman vs. Gonzalez, 444 F.3d 1031 (9th Cir. 2006)

Choin vs. Mukasey

Matter of Sesay 25 I&N Dec. 431 (BIA 2011)

Matter of Le(BIA 2011)

Opinion of the Court:

On August 12, 2008 the court held that foreign nationals who marry their fiancé after entering the United States on a K-1 fiancé visa, and who subsequently obtain a divorce prior to obtaining permanent resident status, are still entitled to adjust to resident status.

[subwayguy 100]

Your chances seem very slim. Just think about it. If people in your situation could get a green card, that would be a major loophole in the system. Since everybody could just marry a citizen on k1. Divorce after few months and then become a LPR. Mind you, I am not judging , I am merely making a reasonable guess.

[Ian H. 207]

I agree. However, luckily for the OP she is waiting for her interview in August. Which we can safely assume that her husband already submitted the I864 with the AOS application otherwise it would have been returned. Fortunately, at this point it would be irrelevant if the OP's husband didn't want to file an AOS because he already did. Of course, had that not been the case then it would be an issue.

No! The I-134 is only good for 90 days.

Question 1b: Please confirm that an I-864 affidavit of support is not required for a K-1 applicant for

adjustment under Sesay, since a K-1 does not adjust under INA §204.

Response: USCIS does not agree with this contention.

A K-1 seeking adjustment must establish admissibility. 24 I&N Dec. at 441. As the Board held in Sesay,

the K-1 adjusts as an immediate relative. For this reason, INA 212(a)(4)© clearly requires the alien to

have an Affidavit of Support, Form I-864, completed by the original sponsor, i.e., the U.S. citizen who

petitioned for the nonimmigrant K visa. The K-1’s eligibility for classification as an immediate relative

has always been predicated on the Form I-129F. 25 I&N Dec. at 439. The affidavit of support rule

reflects this practice, by treating the Form I-129F petitioner as the equivalent of an I-130 petitioner. 8

CFR 213.2(b)(1).

If the alien and the original sponsor are divorced, the K-1 may adjust so long as the original sponsor

already executed a Form I-864 or is willing to do so. Divorce on its own does not end the I-864

obligation. If the original sponsor never executed a Form I-864, and is not willing to do so, the K-1 will

be inadmissible as a public charge.

http://www.uscis.gov/sites/default/files/USCIS/Outreach/Notes%20from%20Previous%20Engagements/2012/March%202012/AILA_Field_Ops_32112_Cleared.pdf

[Harpa Timsah 13,258]

Husband can pull I-864 at any time before the I-485 is adjudicated.

[belinda63 3,041]

A K-1 who marries his/her petitioner can divorce at any time and file to adjust status without them. So why bother with all the trouble of VAWA?

[Marco&Bettina 502]

A K-1 who marries his/her petitioner can divorce at any time and file to adjust status without them. So why bother with all the trouble of VAWA?

Who mentioned VAWA?

[belinda63 3,041]

No one, but it sort of makes it useless if what is being said here is correct. All the women who come on a K-1 and marry then go to all the trouble and expense of VAWA don't need to do that. They can file for the green card just based on their marriage to the petitioner (even if only married for one day). If what is being said here is correct.

[onye uwaoma 131]

Your chances seem very slim. Just think about it. If people in your situation could get a green card, that would be a major loophole in the system. Since everybody could just marry a citizen on k1. Divorce after few months and then become a LPR. Mind you, I am not judging , I am merely making a reasonable guess.

No! that's not true. The bottom-line is due diligent to the law and not on the assumption of "what if". The argument is whether the marriage was entered in good faith or not? I don't see any different it makes when someone move here on a cr1/ir1 visa and get divorce because the marriage didn't work and someone move here on a k1 and gets married, but the marriage failed. Do you expect one to perform miracle on a failed marriage because of the visa category? Those who make the law are reasonable.

[Ian H. 207]

You are absolutely right! Immigration law states that the marriage has to have been entered into with good faith. If they expected or required people to stay married, they would make it specifically clear that the couple has to stay married and live together for x amount of years. As a matter of fact I have seen the case of a woman who petitioned her husband whom she had two kids with and they didn't plan on living together as a couple. They weren't together, but they were still legally married and the husband was still able to get his visa. I found that strange because I always assume they had to be together, but no. The law is very specific when it says the marriage must not have been entered to for immigration purposes. It says nothing about the couples currently living together or intending to. As long as they are not legally separated or divorced and otherwise eligible to immigrate, that is all that is needed. This is in the case of spouses. Fiances HAVE to prove that they intend to marry within 90 days and obviously live with the fiancé so it is different for them. For some people it' s just easier to judge than to try and give advice.

No! that's not true. The bottom-line is due diligent to the law and not on the assumption of "what if". The argument is whether the marriage was entered in good faith or not? I don't see any different it makes when someone move here on a cr1/ir1 visa and get divorce because the marriage didn't work and someone move here on a k1 and gets married, but the marriage failed. Do you expect one to perform miracle on a failed marriage because of the visa category? Those who make the law are reasonable.

[bubblebubble 16]

As far as I remember reading in a website same as visajourney from China, there was an article talking about divorce and stuff, vaguely, they might have to file AOS not based on marriage but something else, they can get other supports on I864 like themselves or someone else if they are lucky.

Edited July 25, 2014 by bubblebubble

[raven52 233]

No doubt, this guy """""""""""""""""""""ian186""""""""""""""is just looking for post "time"..,.,his first statement, """""so you are under K-1 and have applied for AOS"""".,,.,.,

if your 90 days has expired, or you are married, then the K-1 is "gone".,.,.,

Harpa, this guy is just looking for "post time".,.,.,it is obvious, as he has an answer for everything.,,..and most of it is poorly written.,.,.and makes no sense.,.,he needs, to sit back, read the site, and study.,.,and when he gets about 10 "red hearts" under his name.,.,.,.,HE will be taken seriously!

I feel sorry for the OP..,.,.looking at divorce, and I hope you get your GC.,.,.,.,.,do all you can do, prove the marriage was legit, at least on your part.,.,.get your evidence together now.,.,.,God's speed and good luck!

[TBoneTX 45,873]

One abusive post has been removed and administrative action applied. Please post constructively or do not post.

TBoneTX

VJ Moderation

[onye uwaoma 131]

Husband can pull I-864 at any time before the I-485 is adjudicated.

What happens when a spouse is adjusting status on the basis of vawa? Where will the I-864 come from since the other spouse is not party to the petition anymore? I ask because people have successfully done this but I don't know how the I-864 was taken care of. Think about it.

Edited July 25, 2014 by onye uwaoma

[Merrytooth 5,748]

I-864 is not required for VAWA self-petitions

[onye uwaoma 131]

No one, but it sort of makes it useless if what is being said here is correct. All the women who come on a K-1 and marry then go to all the trouble and expense of VAWA don't need to do that. They can file for the green card just based on their marriage to the petitioner (even if only married for one day). If what is being said here is correct.

Logic is different from Law.