Annulment/Divorce from K1 after 3 months of marriage

[Shiran 1,134]

On 7/6/2019 at 8:35 AM, Abbey B said:

I am less worried about whether it is a divorce or an annulment, I just was mostly concerned about the sponsorship status and what the consequences would be if I were to pull I-864. 

 

My understanding I-864 only activates after I-485 is approved, and Green Card issued. Up until then you can withdraw it at any time, and should. He should not stay past the point when I-485 official denied, because he only has "permitted stay" due to pending AOS (assuming his I-94 expired by now) 
Realizing America is not all that is fairly common, especially when trapped in a house for months. I am sorry things didn't work out for you.  

[Villanelle 4,122]

On 7/4/2019 at 12:37 PM, Abbey B said:

This is very hard writing this as I was very involved with VJ during the K1 visa process and was so excited when my fiance came here to marry me from Israel.

 

He came in January, we married in March and as of June 9th he moved out of the apartment to stay at an AirBnB and is going to go back home after our divorce is done. We had many fundamental issues, he was not willing to work on them or seek counseling, and he kept telling me he wanted to just go home because he couldn't see a future here. 

 

Long story short, we already filed for AOS, EAD and AP back in May--he went for his biometrics and NOW I have filed for annulment. We have no kids or assets together other than our joint bank account which is now been closed. 

 

My question and concerns are:

 

• Given that I am his sponsor, do I have any legal obligation or liability during the divorce/annulment process? 
• If we end up divorced instead of annulled, can he try to get alimony from me because I was his sponsor?
• If we end up annulled, does the "fraud" stay on his record? I tried to get an annulment based off of a 'fraudulent marriage' because he promised a life here with me, promised a family and promised to stay in the US but 3 months after marriage, he does not want to stay here, does not want a family and does not want to be married. 

 

We are not talking and I am concerned what he can do and what he can try to get out of me given that I was his sponsor. 

You seem to have a few more concerns based on the follow up posting you made... There are two different things going on. One is immigration and the other is divorce. While they are intertwined they are still individual stand alone processes.

 

For a divorce- that happens in a family court. Family court does not care about ones immigration status. You are viewed as equals in the case regardless of legal status. It is possible to complete a divorce or annulment from another country. That would be his issue to figure out though, not yours. Divorce laws also dictate things like spousal support- both during the divorce and what will be awarded if anything in the final decree. Some states will take into account the 864 when deciding spousal support. Your 864 should not be considered valid until he actually gets a GC issued though so it shouldn't be an issue. Speak to your divorce attny about this. 

 

Immigration wise if you pull the 864 (which you need to do so that he is not issued a GC causing your 864 to become enforceable) but when you pull the 864 he will no longer be in a period of auth stay and would be subject to deportation. As long as the petition is pending he is safe from deportation but you run the risk of the GC being approved. 

 

Because he entered as a K and it's has passed the 90 days the K gave him- he is going to have problems returning to the US in the future. Again, this is not really your concern- just an FYI> When someone on a K files AOS they get the "auth stay" to cover them from when the 90 days expires until they get their GC. However if they do not get a GC- starting at 91 days each day is counted against them and depending on how many days he accumulates he may have a ban. That is why he might WANT to leave before the divorce process is complete.

[Abbey B 79]

17 hours ago, Villanelle said:

You seem to have a few more concerns based on the follow up posting you made... There are two different things going on. One is immigration and the other is divorce. While they are intertwined they are still individual stand alone processes.

 

For a divorce- that happens in a family court. Family court does not care about ones immigration status. You are viewed as equals in the case regardless of legal status. It is possible to complete a divorce or annulment from another country. That would be his issue to figure out though, not yours. Divorce laws also dictate things like spousal support- both during the divorce and what will be awarded if anything in the final decree. Some states will take into account the 864 when deciding spousal support. Your 864 should not be considered valid until he actually gets a GC issued though so it shouldn't be an issue. Speak to your divorce attny about this. 

 

Immigration wise if you pull the 864 (which you need to do so that he is not issued a GC causing your 864 to become enforceable) but when you pull the 864 he will no longer be in a period of auth stay and would be subject to deportation. As long as the petition is pending he is safe from deportation but you run the risk of the GC being approved. 

 

Because he entered as a K and it's has passed the 90 days the K gave him- he is going to have problems returning to the US in the future. Again, this is not really your concern- just an FYI> When someone on a K files AOS they get the "auth stay" to cover them from when the 90 days expires until they get their GC. However if they do not get a GC- starting at 91 days each day is counted against them and depending on how many days he accumulates he may have a ban. That is why he might WANT to leave before the divorce process is complete.

Thanks so much for your response to this--super helpful.

 

My lawyer also mentioned that he can complete the divorce/annulment from another country, which is good to know. I don't think the GC or even the AP/EAD will get issued in time since we just received our NOA1 a month ago...I can't imagine the annulment or divorce will take longer than 3 months and we will then cancel the AOS/EAD/AP application entirely.

 

My last concern about an annulment (for him...since I do still care about him of course) is that the 'fraudulent' marriage does not affect his immigration status in THE FUTURE. I know he will want to get a tourist visa again one day to visit...(not to visit me, but just the US in general) and I want to be sure that the annulment won't affect his ability to visit again (since the annulment is based off of HIS lies about wanting to stay here--of course, these are just the 'terms' for an annulment and my husband is aware of that). 

[Boiler 45,559]

Not sure why you do not pull the affidavit now.

 

Admitting to a fraudulent visa application would be a life time ban, theoretically a waiver would be available dependent on what sort of visa was being applied for but with this on his record not sure how likely it would be for a waiver to be successful.

[Abbey B 79]

Well the 

9 minutes ago, Boiler said:

Not sure why you do not pull the affidavit now.

 

Admitting to a fraudulent visa application would be a life time ban, theoretically a waiver would be available dependent on what sort of visa was being applied for but with this on his record not sure how likely it would be for a waiver to be successful.

Well the visa application (K1 to AOS) is not fraudulent. It was rather that the MARRIAGE was (those are legal terms of an annulment--"the marriage was void of the essentials of marriage" aka he promised a life with me, promised me a family and promised to stay in the US with me but then following our marriage 3 months ago, he no longer wanted a life with me, no longer promised to stay in the US and no longer wanted a family). 

 

As one other person posted...immigration and marriage are two separate things but I just want to be sure that the grounds of the annulment (lies/fraud) will not impact his immigration for a tourist visa in the future..

[Boiler 45,559]

They are separate but obviously related, especially where you are seeking to obtain an Immigration Benefit (Green Card) based on a fraudulent marriage.

[Abbey B 79]

Just now, Boiler said:

They are separate but obviously related, especially where you are seeking to obtain an Immigration Benefit (Green Card) based on a fraudulent marriage.

For this instance, I will obviously withdraw the application and the sponsorship so he can't get the green card....but just want to be sure it won't affect a tourist visa (not a marriage based visa) moving forward for him...

[Boiler 45,559]

The impact of Fraud has been answered.

[HRQX 4,145]

20 hours ago, Villanelle said:

Because he entered as a K and it's has passed the 90 days the K gave him- he is going to have problems returning to the US in the future. Again, this is not really your concern- just an FYI> When someone on a K files AOS they get the "auth stay" to cover them from when the 90 days expires until they get their GC. However if they do not get a GC- starting at 91 days each day is counted against them and depending on how many days he accumulates he may have a ban. That is why he might WANT to leave before the divorce process is complete.

Does not start from day 91 per the DOS Foreign Affairs Manual; https://fam.state.gov/fam/09FAM/09FAM030211.html#M302_11_3:

Quote

DHS has interpreted "period of stay authorized by the Secretary of Homeland Security," as used in this context, to include:

.

.

.

.

(5) (U) For aliens who have properly filed an application for adjustment of status to that of a lawful permanent resident (LPR), the entire period of the pendency of the application, even if the application is subsequently denied or abandoned, provided the alien (unless seeking to adjust status under NACARA or HRIFA) did not file for adjustment "defensively" (i.e., after deportation proceedings had already been initiated);

 

[SJordanS 343]

On 7/4/2019 at 9:37 AM, Abbey B said:

This is very hard writing this as I was very involved with VJ during the K1 visa process and was so excited when my fiance came here to marry me from Israel.

 

He came in January, we married in March and as of June 9th he moved out of the apartment to stay at an AirBnB and is going to go back home after our divorce is done. We had many fundamental issues, he was not willing to work on them or seek counseling, and he kept telling me he wanted to just go home because he couldn't see a future here. 

 

Long story short, we already filed for AOS, EAD and AP back in May--he went for his biometrics and NOW I have filed for annulment. We have no kids or assets together other than our joint bank account which is now been closed. 

 

My question and concerns are:

 

• Given that I am his sponsor, do I have any legal obligation or liability during the divorce/annulment process? 
• If we end up divorced instead of annulled, can he try to get alimony from me because I was his sponsor?
• If we end up annulled, does the "fraud" stay on his record? I tried to get an annulment based off of a 'fraudulent marriage' because he promised a life here with me, promised a family and promised to stay in the US but 3 months after marriage, he does not want to stay here, does not want a family and does not want to be married. 

 

We are not talking and I am concerned what he can do and what he can try to get out of me given that I was his sponsor. 

First of all Im very sorry to hear about all of this. How unfair and hurtful this must feel. Next, Ill tell you EXACTLY what my immigration attorney of 25 years old me and save you a call. He gave me this list when I met him the first time and listed scenarios. Annul ,annul, annul!  Seek a divorce attorney next for a consult. You are smart to consider this. You will be financially responsible for him unless you withdraw your AOS. He may have other motives. My gut is he lied. Your gut tells you this too and since its only 3 months annul and withdraw ASAP. If it ends up he somehow stayed here even though you annulled, he wont get past the immigration interview I think.  Depending on your state laws it wont matter why you divorced he may still has rights. 

[Boiler 45,559]

Sounds like the annulment is on the basis that he will agree to admit fraud.

[portorusa 431]

Annulment is very difficult to prove. Especially on the grounds of fraud.

Why are you so sure that he had lied to you, anyway? Do you have a document to prove it? Like something in his writing to admit he had lied? 

Have it ever occurred to you that he honestly hoped for a good marriage of a life time with you? That he, too had his dreams and expectations and honestly hoped for the best? Like you, he was sure he was in love and that things will be wonderful with you?

But it did not work out as he hoped. And he is disappointed and hurt, just like you. He realized that a real life turned out to be different and that he was not happy with you.

And then he did the right thing, and moved out. 

If he stayed and pretended that everything is hunky-dory and waited to get his green card, and then moved out, that would have been fraud.

Instead he ended the marriage before getting his green card. Moreover, he expressed his wish to return to his home country.

I think your ego screams “fraud” because you are unwilling to admit the truth, that the marriage failed, and most likely not only because it was his fault, and his fault only.

Just divorce, withdraw your Affidavit, and move on. 

[Abbey B 79]

19 hours ago, Boiler said:

Sounds like the annulment is on the basis that he will agree to admit fraud.

This is true...and I don't know yet if he will. I have already filed for it but I haven't served him because of this fear. He said he will only agree to it if he knows it won't affect his future immigration. 

[Abbey B 79]

17 hours ago, portorusa said:

Annulment is very difficult to prove. Especially on the grounds of fraud.

Why are you so sure that he had lied to you, anyway? Do you have a document to prove it? Like something in his writing to admit he had lied? 

Have it ever occurred to you that he honestly hoped for a good marriage of a life time with you? That he, too had his dreams and expectations and honestly hoped for the best? Like you, he was sure he was in love and that things will be wonderful with you?

But it did not work out as he hoped. And he is disappointed and hurt, just like you. He realized that a real life turned out to be different and that he was not happy with you.

And then he did the right thing, and moved out. 

If he stayed and pretended that everything is hunky-dory and waited to get his green card, and then moved out, that would have been fraud.

Instead he ended the marriage before getting his green card. Moreover, he expressed his wish to return to his home country.

I think your ego screams “fraud” because you are unwilling to admit the truth, that the marriage failed, and most likely not only because it was his fault, and his fault only.

Just divorce, withdraw your Affidavit, and move on. 

This just hit me hard. 

 

Thank you for taking the time to write a response like this--it made me hear what maybe I didn't want to hear but as much as I want an annulment to get rid of the marriage, this may be the best decision to just get a divorce. I know he didn't want to hurt me or have any bad intention, he just knew we weren't working out, after 4 years of dating. 

 

I have a call with my divorce attorney today to discuss the two options before serving the papers to him. I already filed the papers, I just didn't serve him yet. They were filed as "annulment as first option and if he does not agree, then a divorce as the second option" but now I don't even know if I want to even mention the annulment. When he sees "fraud" he might get upset and make this emotionally worst for both of us...

[Villanelle 4,122]

On 7/9/2019 at 3:25 PM, HRQX said:

Does not start from day 91 per the DOS Foreign Affairs Manual; https://fam.state.gov/fam/09FAM/09FAM030211.html#M302_11_3:

 

Good catch! Honestly overstay/illegal presence issues give me a headache and I try to avoid them at all costs. 

So it seems the only immigration issue for him once the 864 is pulled (whenever she decides to do that) and his ability to return to the US as a tourist or however in the future will be having a divorce decree stating fraud.

Abbey- you do realize almost all immigration processes involve some sort of background check/identity check. He may well have to present his divorce decree. Once they see the wording of fraud on it- he is going to have issues. Even if you try to argue it wasn't GC fraud- the bottom line was it was still a fraud. If he defrauded you, or if he defrauded the US or if he defrauded Mexico. It doesn't matter who- it matters that he did it. 

 

I also re-read one of your posts and you said something curious to me. That 3 months after marriage he no longer wanted X Y and Z. Saying its fraud means (to me) that he never wanted X Y and Z in the first place. As someone else suggested if he did want X y and Z but quickly changed his mind, well I don't think that's fraud. But if he never intended to have those things with you === well, that is misleading and wrong. If that was the case you need to decide how best to handle it. You have every right in that case to have a negative item added to his lifes paperwork . Some people view doing that as the actions of a bitter person and others view as it both deserving and appropriate. You have to look at yourself in the mirror everyday- no one else. Make a decision you can live with.