K1 Visa - Married Husband but Divorced

[020871 2]

Posting for a friend - A friend of mine came here in the US as a K1 Visa. Her and the petitioner got married but eventually divorced. Apparently the petitioner did not processed my friends paper before they got divorced. My friend is now almost two years here and will now get married to her bf. My question are the following:

 

1. Does she need to go back to the Philippines to have her new husband petition her again? Why? for a waiver of what?

2. Would it be possible to have her new husband file for an Adjustment of Status and Spousal Petition?

 

We would gladly appreciate your honest answer .

 

Thanks!

[Ben&Zian 4,398]

As a K-1 receipient as she was, she can only adjust through the original petitioner. From my perspective only option is to marry and file for CR-1 visa but she cannot process through the entire thing in the US and at some point would have to return to the Philippines; but that being said she now also has overstayed the original I-94 status and there for also should have to deal with a ban for overstay. 

[geowrian 22,337]

1. Yes. They will need to file an I-601 after being refused the visa due to the 10 year bar for unlawful presence in excess of 1 year. The waiver can only be filed after otherwise being found eligible for the visa.
   1. K-1: ~8-11 months (or get married and do a CR-1 one and avoid the whole AOS step! ETA: ~12-16 months)
   2. I-601: ~12+ months
2. No. A K-1 entrant can ONLY adjust status through the original I-129F petitioner. There is no way around this requirement, and one of the drawbacks of a K-1.

Technically...she can still adjust status using her existing K-1 status (see Matter of Sesay), but 1) the original petitioner must agree to be financial responsible for her by providing an I-864, and 2) it's a very uphill battle and likely requires an attorney.

This info is just for completeness...I don't suggest trying to go that route.

[Roel 7,192]

9 minutes ago, 020871 said:

Posting for a friend - A friend of mine came here in the US as a K1 Visa. Her and the petitioner got married but eventually divorced. Apparently the petitioner did not processed my friends paper before they got divorced. My friend is now almost two years here and will now get married to her bf. My question are the following:

 

1. Does she need to go back to the Philippines to have her new husband petition her again? Why? for a waiver of what?

Since she arrived on k1 visa she could only adjust status through her original petitioner. She cannot do aos with anyone else. She might need waiver because she was in the country illegaly and she needs to leave in order to process a spouse visa. 

 

9 minutes ago, 020871 said:

2. Would it be possible to have her new husband file for an Adjustment of Status and Spousal Petition?

 

 

AOS- no. Spouse visa - yes. 

[JFH 12,190]

*~*~*moved from “IMBRA” to “what visa do I need” - not an IMBRA topic but a discussion on the available options*~*~*