Advice needed: Relationship termination before green card is approved

[Darnell 8,479]

Sandra in NJ - that is so cool !

[tarzan31 27]

The UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT theld that a K visa recipients that good marriage in good faith and the relationship ended in divorce prior to the adjudication of the adjustment application are still entitled to adjust to resident status. See the case of Choin vs. Mukasey, No.s 07-70941 and 06-75823 (9th Cir.) and see Matter of Alfred Kebbie SESAY as well.

https://shusterman.com/pdf/choinopinion-9thcircuitcourtofappeals2008.pdf

http://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3707.pdf

Looks like a gray area to me. Both of those cases were for marriages of more than two years. One in which the case was mishandled and left in limbo for an extensive amount of time. The second was because they were married more than two years when the AOS was filed. It was denied due to misinterpretation of the statutes. The OP was not married for more than two years, so I wonder if someone can find cases of shorter term marriages.

[newacct 688]

The UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT theld that a K visa recipients that good marriage in good faith and the relationship ended in divorce prior to the adjudication of the adjustment application are still entitled to adjust to resident status. See the case of Choin vs. Mukasey, No.s 07-70941 and 06-75823 (9th Cir.) and see Matter of Alfred Kebbie SESAY as well.

https://shusterman.com/pdf/choinopinion-9thcircuitcourtofappeals2008.pdf

http://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3707.pdf

But the marriage is only one of the issues. Another issue is the Affidavit of Support. USCIS has taken the position (in 2012) that a K-1 who has divorced can adjust status only if the petitioner is willing to execute an I-864. They stated so in this March 2012 Q&A (Question 1b), and confirmed it in this October 2012 Q&A (Question 12b).

However, in the OP's case, the petitioner has already executed an I-864, and the question is only one of withdrawal. Interestingly, in the October 2012 Q&A above, USCIS seems to be saying that the I-864, once submitted, cannot be withdrawn by the petitioner after the K-1 enters the US (which means it cannot be withdrawn after filing AOS):

In other words, USCIS believes that, if the I-129F petitioner has submitted a Form I-864, he or she cannot validly withdraw it after the date of the K nonimmigrant admission.

This seems surprising and contrary to what we've been telling people on this forum; is it really true?

Edited January 6, 2016 by newacct

[Darnell 8,479]

nah - if the I-864 is withdrawn, that casefile is closed by USCIS and the application to adjust status is denied.

So, did the OP's spouse withdraw, officially, the I-864 or no? if no, there is some gray area. If yes, expect a denial.

[deleted this acco 44]

Are u saying the petitioner can agree to be bound by an I-864 when she or he is no longer married to the immigrant. I don't think so. Most petitioners here like to see the immigrant falling. They wanna ship'em back home.

[Darnell 8,479]

Are u saying the petitioner can agree to be bound by an I-864 when she or he is no longer married to the immigrant. I don't think so. Most petitioners here like to see the immigrant falling. They wanna ship'em back home.

please understand timeticks ...

the I-864 can be withdrawn by the petitioner and logged by USCIS anytime before 'card production ordered' timetick.

that's one boundary.

Here's another - got a 10 year card, divorce finalized 3 years and 4 months after first green card issued,

and the petitioner's I-864, by law, is bound to the petitioner for another period of time.

Are you sure you're studying the I-864? This 'bound' stuff is listed there. I'm sure someone will post it for you to read, but instead, I challenge you to actually read the I-864.

[Eric-Pris 1,607]

OP- I would not do anything yet, like packing up to go back to your country. Like others have said, your case seems to be taking an unusual amount of time to process for a greencard. You should check online or call USCIS because it's possible that you already have a GC but she intercepted it. If that's the case, you will need to inform them of this and they will tell you how to proceed.

Even if your GC has not been approved yet, just because she said that "she will write a letter to USCIS" doesn't mean that she will. People sometimes say things to hurt people but don't follow through. And she may not get it in on time. There are several possibilities. My advice is wait and see what happens.

[Villanelle 4,122]

But the marriage is only one of the issues. Another issue is the Affidavit of Support. USCIS has taken the position (in 2012) that a K-1 who has divorced can adjust status only if the petitioner is willing to execute an I-864. They stated so in this March 2012 Q&A (Question 1b), and confirmed it in this October 2012 Q&A (Question 12b).

However, in the OP's case, the petitioner has already executed an I-864, and the question is only one of withdrawal. Interestingly, in the October 2012 Q&A above, USCIS seems to be saying that the I-864, once submitted, cannot be withdrawn by the petitioner after the K-1 enters the US (which means it cannot be withdrawn after filing AOS):

This seems surprising and contrary to what we've been telling people on this forum; is it really true?

I agree- the marriage is only part of the issue and its not really an issue per say. A k1 who divorced can still adjust status if they have a valid 864 and meet all the other requirements (bonafide marriage etc). Everyone seems to acknowledge that./

As for the question of withdrawal- In the Q&A they say a lot of things some which seem to contradict.

From Q&A

Under Sesay,eligibility for a visa number, for adjustment purposes, is determined as of the date of the nonimmigrant

admission (assuming a timely marriage). Thus, it is reasonable to conclude that a sponsor’s ability to

withdraw the Form I-864 is governed by 213a.2(f)(1), rather than (2). In other words, USCIS believes

that, if the I-129F petitioner has submitted a Form I-864, he or she cannot validly withdraw it after the

date of the K nonimmigrant admission.

213a.2(f)(1)-

Withdrawal of Form I–864 or Form I–

864A.

(1) In an immigrant visa case, once the sponsor, substitute sponsor,

joint sponsor, household member, or intending immigrant has presented a

signed Form I–864 or Form I–864A to a Department of State officer, the sponsor,

substitute sponsor, joint sponsor,or household member may disavow his

or her agreement to act as sponsor,substitute sponsor, joint sponsor, or

household member if he or she does soin writing and submits the document to the Department of State officer before

the actual issuance of an immigrant visa to the intending immigrant. Once the intending immigrant has obtained

an immigrant visa, a sponsor,substitute sponsor, joint sponsor, or

household member cannot disavow his or her agreement to act as a sponsor,

joint sponsor, or household member unless the person or entity who filed the

visa petition withdraws the visa petition in writing, as specified in 8 CFR 205.1(a)(3)(i)(A) or

8 CFR 205.1(a)(3)(iii)©, and also notifies the Department of State officer who issued

the visa of the withdrawal of the petition.

205.1(a)(3)(i)(A)

§ 205.1 Automatic revocation.

(a) Reasons for automatic revocation. The approval of a petition or self-petition made under section 204 of the Act and in accordance with part 204 of this chapter is revoked as of the date of approval:

(3) If any of the following circumstances occur before the beneficiary's or self-petitioner's journey to the United States commences or, if the beneficiary or self-petitioner is an applicant for adjustment of status to that of a permanent resident, before the decision on his or her adjustment application becomes final:

(i) Immediate relative and family-sponsored petitions, other than Amerasian petitions.

(A) Upon written notice of withdrawal filed by the petitioner or self-petitioner with any officer of the Service who is authorized to grant or deny petitions.

--

So my understanding of the above is-

withdrawing the 864 is governed by 213a.2(f)(1)- which says you can disvow your support before the issuance of a visa. But if the visa was already obtained you can not withdraw it unless the person who filed the visa petition withdraws the visa petition in writing as in 8 CFR 205.1(a)(3)(i)(A) which states you can revoke your petition as of the date of approval before they enter the US or before the decision on their AOS becomes final.

So it would seem to cancel an 864 after the K1 entered and filed for AOS with it you would need to send a letter asking to withdraw the 864 AND asking to revoke the visa petition (k-129f)- as long as AOS wasnt approved yet.

I do recall one post where someone mentioned they did that- (wrote letter saying to cancel 864 and 129) because they were advised to send it that way, and the responses were generally you cant cancel the 129 its already been used. The above seems to contradict that. It may also seem to explain why some people report problems trying to revoke the 864. I suppose if you dont revoke both it may not go anywhere (?)

--

For the OP- he would need to find out if the 864 was cancelled or not. I disagree with just waiting to see what happens. He doesnt want to end up denied and not know about it because he doesnt get the letter for whatever reason and overstays. At the same time there are rules similar to when you divorce in the process of ROC- where theres nothing that says you must tell them of a change in situation- however if you dont and are approved they can turn around and say they didnt have all the facts when making the decision.

So if the wife sent a letter telling them about the breakdown but did not withdraw 864 properly- He should advise them himself also and refer to the cases above that state he is still eligible for AOS regardless because his marriage was bonafide and he has a valid 864.

If she sent no letter- he should do the above anyway

If she sent a letter and withdrew properly theres nothing he can do, but he can find this out by monitoring his case status for the denial so he is sure there is no overstay.

The only other curiosity here is that he originally filed in Nov 14. This is incredibly excessive (unless he put the date wrong). Theres a slight possibility that he was approved already and doesnt know about it. Perhaps they moved and the card was successfully delivered to the wrong house or it got lost in the mail? He should check his case status online or the phone center and find out what its showing. Is he waiting for an interview at a local office thats extremely backed up? Is it still at a service center? Has he put in any requests? When if ever was the last time he got a extension stamp or any correspondence from them? An RFE? Speak with a congressperson or Obud?

Edit- How silly is that- the flower emojis above are suppose to be the letter f in ().

Edited January 6, 2016 by Damara

[nane1104 146]

My AOS application took a very long time as well. It got shuffled around between several locations until it was deemed "lost". I contacted my congressman and had my approval notice and welcome letter in the mail within a few weeks.

I was going to advice the OP to also contact his congressman for help, depending on what he knows is going on with his case but wasn't sure if that's "cheating" given the circumstances?