divorce while AOS Pending

[ineedofhelp 0]

first let me thank you again for this great website. its so nice to get help from persons who been there and done that. it also gives comfort.

We had two interviews with the immigration already. the first was okay, the second wasnt (it was more of an interrogation), however, in both interviews, no firm answer was given, and all what the officers said was to wait for the response in mail. obviously, we werent convincing enough for the officer to grant a GC right away.

I (the AOS applicant) immediatly hired a lawyer to help me out. all what he did bascially was ask for my file and such. he was informed that either we will be asked for ANOTHER interview or we will be approved later. our last interview was october 2006 so basically 6 months and havent heard anything from immigration office.

to make things worse, my wife now wants divorce! we got separated last month and she already has a bf in canada.

I know i have to consult my laywer, but I wanted to come here first so you guys can give me some insight. am tired of laywer consultations and the whole paperwork frustration.

what would happen to my AOS case if i get divorced now? is it an automatic denial? deportation? I am willing to leave the country but i need some time to wrap things up here. meaning i cant be put on removal proceedings, without closing my finanical accounts, house...etc. you guys know how much time it takes to leave ones residence.

two things i have to point out:

1. I heard of two similar cases before where the AOS applicant was granted the 2 yrs GC even though they got divorced before thier condtional GC was approved. i was told that a divorce doesnt stop my AOS case, nor it withdraws the 130 petition since it was signed when the marriage was valid.

2. my wife is fully willing to cooperate with me in the divorce and immigration proceedings. she understands how frustarting it is to deal with immigration and divorce lawyers. we are on good terms it is just that she doesnt want to stay with me anymore. would that help?

please let me know before i even start doing the paper and lawyer consultations.

[elgringo 0]

It can still happen, but basically you guys will have to convince an immigration officer that you guys didnt get married just so that you could receive a green card.

[j-manu 0]

Sorry to learn of yor situation. You case will not be easy. If it does proceed and you get your conditional green card, you wife will still be financial responsible for you. It may help if you have work here to support yourself.

Good luck.

[ineedofhelp 0]

thanks for the quick response.

well, my wife is not the sponsor, its actually a friend of mine, who have no objection to keep sponsoring me if i get divorced.

also, u mentioned that i need to convince the officer that it wasnt a sham. well, we had two interviews already. what more evidence i need to give if I showed enough documents earlier? my wife is willing to help me i.e. she will acompany me infront of an immigration judge-if we are asked to- and she will say that it wasnt a sham. is that of any good?

my confusion is how long would i be able to stay in the US if i informed immigration that my divorce is final? would that constitute a voluntray departure? do they give me a "time frame" to leave the US? see I'd rather depart voluntary than getting deined since i would like to come back later to the US if i ever wanted to visit again.

Edited April 10, 2007 by ineedofhelp

[diadromous mermaid 36]

thanks for the quick response.

well, my wife is not the sponsor, its actually a friend of mine, who have no objection to keep sponsoring me if i get divorced.

also, u mentioned that i need to convince the officer that it wasnt a sham. well, we had two interviews already. what more evidence i need to give if I showed enough documents earlier? my wife is willing to help me i.e. she will acompany me infront of an immigration judge-if we are asked to- and she will say that it wasnt a sham. is that of any good?

my confusion is how long would i be able to stay in the US if i informed immigration that my divorce is final? would that constitute a voluntray departure? do they give me a "time frame" to leave the US? see I'd rather depart voluntary than getting deined since i would like to come back later to the US if i ever wanted to visit again.

Here's another case where it is important to define what you mean by sponsor. The petitioner is a sponsor, but a joint sponsor is not always the petitioner. If yours is a marriage-based petition, then your wife is the primary sponsor. You may have another sponsor ( a friend in your case) to meet the financial requirements of the Affidavit, but the petitioner in a marriage-based case is the US citizen spouse.

Any marriage that is less than two years old at the time the adjustment of status is approved will result in a conditional green card. In marriage-based cases, the parties must be in a viable marriage at the time that the adjustment of status application is reviewed. Should parties divorce prior to the adjudication of the adjustment application, the regulations in the INA stipulate that the alien's application will be denied, because the whole basis for immigrant benefit is based upon marriage to a US citizen. No marriage - no basis.

There are occasions where parties are in a viable marriage at the time the adjustment of status application is submitted, but backlogs or delays in adjudicating could result in a marriage ending while the application is pending review. Bear in mind that if parties ahve been married less than 2 years when the application is approved, the benefit conferred is only conditional and would be subject to removal of those conditions 2 years later on. If an alien somehow "slipped through the cracks" with an untimely divorce, it would be evident later in the process.

You're a little confused with the process of adjudication of adjustment applications. If the alien's case does not meet the standards required to prove that the marriage is bona fide, he or she will receive a denial, be advised that removal proceedings will commence and the alien will receive instructions for an NTA (Notice to Appear) before an Immigration Judge to review the denial. He or she will have another stab at proving the bonafide nature of the marriage in the proceedings. During that hearing the Service will present the facts that rendered a decision to deny. If compelling, the IJ will affirm the decision and issue instructions for the alien to depart the USA. Of course, he or she can then appeal that decision.

Normally, the alien is informed of how long he or she has to depart. 60 days comes to mind.

If you have been called for two adjustment of status interviews already, there must be some basis for USCIS to doubt the validity of your marriage. Even if your US citizen spouse vouches for the marriage, there can still be facts that put the validity of the union in question. There are, after all, "sham" marriages, where parties act in concert to gain immigration benefit for an alien, usually to the financial benefit of the US citizen spouse You say that your wife is intent on assisting you with your residency. If yours is a bonafide marriage, why, then is she filing for divorce at such a precarious point in the process?

[ineedofhelp 0]

hey mermaid,

wow thank you so much for spending the time to write all that and give ur insight. greatly appreciated.

i understand (from reading ur post) that am going to be denied since there is no basis for viable marriage. but the thing is that we are still pending review after two interviews. if we werent convincing enough then why wait 6 months, shouldnt the officer at least deny it right away?

so here is my question, if officer was in doubt, but still didnt deny AOS, then if we divorce and take our case to a judge, would the judge consider giving a 2 yrs GC to me since at the time of interview there was no denial nor approval of my AOS? I heard such a case before were marriage ended but the girl still got her 2 yrs GC as her marriage was viable at the time of her application review.

it doesnt really matter if i get denied or not. I mean i wouldnt stay here if am not with my wife. but whats so frustrating is that if i get denied i will be given a very short time to prepare to leave. i know i can prolong the stay by appealing the decisions. but bear in mind i will be out of status at that time... they could jail me if they want to - or i can go on bail which are both horrible (both of which they do frequently).

to answer your question of why my wife wouldnt stay, we just dont get along for alot of solid reasons and its affecting our lives, and secondly she wants to live in california and i cant move at the very moment. I want to divorce so if we are asked for another interview, I dont want to say that we are still togather because we wouldnt be. i dont want to lie and put my self in trouble for that.

[makidesuu 0]

You said your 2nd interview was 6 months ago and still waiting for their answer, so I think your EAD will be expired less than 6 months. I suggest you submit an application to renew EAD, that will make them to put up your document to review. In my case, immigration updated my case which was slept on their desk for 6 months.

Also, you have still time to receive Conditional GC before your divorce gets finalized. Once you received Conditional GC, you can adjust under I751. Good luck!

[meredith pa 0]

wow

that's a tough one...

you need to check your case status...

[ineedofhelp 0]

You said your 2nd interview was 6 months ago and still waiting for their answer, so I think your EAD will be expired less than 6 months. I suggest you submit an application to renew EAD, that will make them to put up your document to review. In my case, immigration updated my case which was slept on their desk for 6 months.

Also, you have still time to receive Conditional GC before your divorce gets finalized. Once you received Conditional GC, you can adjust under I751. Good luck!

oh u mean to start the divorce but not tell the immigration? my wife doesnt want to pull out the petition or anything like that, she's fully cooperative, but she simply wants saparation (divorce).

ur right, i will reapply for my EAD next month (should be 90 days or less).

I will consult my lawyer this weekend.

[makidesuu 0]

oh u mean to start the divorce but not tell the immigration? my wife doesnt want to pull out the petition or anything like that, she's fully cooperative, but she simply wants saparation (divorce).

You don't have to tell them you are getting divorce. You will either withdraw your I475 ( if you don't receive conditional GC) or apply I751 by yourself (if you receive conditional GC) after your divorce gets final with the I751, you can attach the letter from your wife stating that your marriage was real. Yes. you should renew your EAD to move them forward to process your file. good luck.

[Pictureperfect 0]

On 4/13/2007 at 8:26 PM, makidesuu said:

oh u mean to start the divorce but not tell the immigration? my wife doesnt want to pull out the petition or anything like that, she's fully cooperative, but she simply wants saparation (divorce).

You don't have to tell them you are getting divorce. You will either withdraw your I475 ( if you don't receive conditional GC) or apply I751 by yourself (if you receive conditional GC) after your divorce gets final with the I751, you can attach the letter from your wife stating that your marriage was real. Yes. you should renew your EAD to move them forward to process your file. good luck.

So what would happen  if he withdraws i475

[TBoneTX 46,068]

Thread from 2007 is now closed.