Is it possible to adjust status with initial petitioner even though divorced and married to another citizen?

[Natalie Van 0]

Hello! 

I hope this is the appropriate forum to ask this question.

I also hope someone has encountered this type of situation and can help.

A brief history of events.
I initially came here on an exchange student visa, the re-entered on student visa a year later. I met my boyfriend in the meantime, we dated 4 years and we decided to get married, even though the relationship was very unstable filled with disfunction and issues...  I left USA to re-enter on K-1 visa. (2002)

It took about 2 years for the process. When I came back things seemed different but we still married within the 90 days period. I had to work to support myself, since he had no intention on doing so. The relationship became controlling and abusive. He would come to my work and sit at the table watching me to make sure I'm not flirting with anyone ( I was cocktail waitress at Dave&Busters). The irrational demands and jealousy only got worse and escalated into public humiliation, like bringing my stuff to my work and dropping it in front of the building, or starting fights at my work, pouring gasoline on my engine, stealing my car off work parking lot. ANYHOW. Eventually I packed my stuff in one car and moved over the mountain to Santa Cruz with a friend.

We filed for divorce. 

Push forward about 13-14 years later. Today I am married with two children (4-8). MY ex husband got in touch with me 8 years ago and we put all the negative from our past to rest and made peace. It was very beneficial process for me, since I held on to a lot of that pain for a long time and it wasn't hurting anyone but myself and people I loved.

I had invested a huge amount of hope in Obama's immigration reform and how it can possibly benefit people like me (who work hard, pay taxes and abide by the law) but as you may know that's out. 

Another option would be to file for the waiver, and show hardship to my children and husband (whom are US citizens) if I have to leave the country and be banned.

And finally last option which brings me to my main question (I'm sorry it took so long to get to it!). It was suggested by my lawyer's assistant to possibly adjust status through my first husband. She needs to do some research and see what can be possibly done with the initial petitioner. 
My ex accused me of fraud and made some damaging, false claims to INS when were in the middle of all the turmoil. He claims he retracted those (I'm not sure I'm buying it...) BUT he has assured me that anything he can do now to help me he would...

Does anyone know if we can consider going that rout? I'm hoping for a glimmer of hope. 

I have lived here for most of my adolescent years and adulthood.  I first came here when I was 16, I am about to turn 39. I can't fathom displacing my entire family to what is a foreign place to me now, and start some kind of life
Thank you in advance if you have read so far and have taken the time to respond!

Edited January 29, 2017 by Natalie Van

[Unlockable 7,314]

AOS is based on the condition that you are married to a USC. Since you are divorced the conditions changed. You could have applied for AOS with a divorce waiver. 

 

There is a chance that you may be able to AOS now with the divorce waiver. But we are talking about a case that is 15+ years old. Other members of VJ with better knowledge would let you know.

 

But to answer your question, using your ex hubby to AOS is out. You are now divorced. But there may be other ways for you to move forward with gaining permanent residence.

[Hypnos 6,576]

Matter of Sesay held that there is no requirement for a K-1's marriage to remain intact in order to successfully be able to adjust status.

 

You do, however, have to indicate that the marriage was bona fide, and the US citizen petitioner still needs to submit an I-864 affidavit of support for you. Is your former husband willing to do that?

 

If he's willing to file an I-864 then you should consult with an experienced immigration attorney that is familiar with Matter of Sesay and how it may benefit you.

 

If he isn't willing to file an I-864 then you have no path to permanent residency.

Edited January 29, 2017 by Hypnos

[Natalie Van 0]

This is what attorney's assistant suggested as well. I am hopeful (based on our last interactions) he's willing to file the affidavit of support. I'm instructed not to contact him yet until she researches the options.

Thank you so much again! This forum is a goldmine of resources and helpful people! 

[Pinkrlion 2,724]

You need a different lawyer.  It was my understanding that under K-1 you cannot adjust your status with anyone else.  Since u did not AOS before u got divorced, is very complicated.

[Ontarkie 14,237]

~~Moved to Effects of Major Family Changes, from K1 P&P~~

[Hypnos 6,576]

5 hours ago, Pinkrlion said:

You need a different lawyer.  It was my understanding that under K-1 you cannot adjust your status with anyone else.

They wouldn't be filing based on the current marriage but on the original marriage, per Matter of Sesay. 

[NikLR 13,227]

Is your first husband willing to do your I-864? Because reading the USCIS dialogue for this, that is the requirement. 

[NikLR 13,227]

Quote

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)(C) 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. 
 
Note that if the K-1’s marriage ends by  death, it is  likely that the K-1 would  be able to adjust as  the widow(er) of the citizen petition.  In  that  situation, no  I-864 is required.  

 

 

You cannot adjust status without your K1 petitioner. 

Edited January 30, 2017 by NikLR
Removed excess spacing

[IcezMan_IcezLady 582]

Hypnos is right!

Read this!

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

[Jawaree 718]

Yup K1 AOS is with original petitioner

[Pinkrlion 2,724]

Do you have 40 quarters in since u have been here 14 years?  

[NikLR 13,227]

14 hours ago, Pinkrlion said:

Do you have 40 quarters in since u have been here 14 years?  

It would be a little hard if the person doesnt have a work permit to get 40 work quarters. 

[Villanelle 4,122]

3 hours ago, NikLR said:

It would be a little hard if the person doesnt have a work permit to get 40 work quarters. 

Hmm, you know theyve been married a long time- her and the new spouse. I believe you can use your spouses credits. Its only the credits earned during your marriage though. So you can combine yours (if any) with any your current legal spouse has earned during your marriage. It may be enough. 

 

I do understand it just makes the whole situation incredibly odd and unbelievable based on what is considered the 'regular rules'!! I mean she may be able to adjust with her own 864 based on a bonafide K1 marriage that she is no longer in.

 

Its rare for someone to be able to use their spouses credits to bypass the 864. Mainly because its only credits earned during the marriage and most people dont wait 5-10 years after marriage to apply for benefits.