Advice needed (Petitioner having affair during AOS process (K1)/Divorce/future travel implications)

[reece-james 2]

Hello All.

 

I have a situation that I would like some advice on if anyone has ever been in a similar position, or has heard of a similar situation.

 

First some background. I came to the United States on a K1 VISA in November 2019 after being in a relationship with my partner for over 2 years. We met in Australia, did long distance with visits and also lived in Australia for a year together. We were engaged before she moved home to the USA and then spent 6 months apart before I moved to the USA in November of last year. We married in the USA December 2019. On Thursday 19^th March, I discovered that my wife (US Citizen and Petitioner) has been having an ongoing affair since at least October 2019. After finding this out this devastating news, I decided to leave the United States as soon as I could due to the horrible personal situation that I was now left in, and of course due to the current situation with international travel that is changing every day. I did not want to get stuck in the USA. As on Sunday 23^rd of March, I am now back home in Australia.

 

In January 2020 the I-485/I-864 & I-765 were submitted and both are still pending. I have done biometrics etc. and was waiting for the applications to be processed. I have now obviously abandoned these applications due to this situation and me leaving the united states. I will be filing for divorce.

 

Now for my question, will me now abandoning my pending AOS application based off a K1 Visa affect future travel for me to the United States considering I was the victim of this situation? I was completely blindsided by all of this and would hate for this situation to affect my future of ever coming back to the United States as a tourist, or even if hypothetically I ended up being offered to return one day on a business VISA etc., especially considering I was not at all at fault. I am devastated by all of this.

 

If anyone has any insight into this and the future possible implications to me being able to maybe return one day to the united states. I would appreciate any knowledge. Even if someone could point me in the direction of any forms that I could submit to USCIS.

 

Thank you.

[African Zealot 1,455]

4 hours ago, reece-james said:

Now will me now abandoning my pending AOS application based off a K1 Visa affect future travel for me to the United States considering I was the victim of this situation? especially considering I was not at all at fault. I am devastated by all of this.

. Even if someone could point me in the direction of any forms that I could submit to USCIS.

Sorry for your pain, relationships by nature open one up for betrayal however life still does and must goon.

 

Will your migration to the USA and attempt to adjust status affect your future profile? Absolutely. All that will be part of your immigration record and will be considered when you next apply for a USA visa or when you use ESTA.

 

That said it doesn’t mean it will be fatal to your chances. Consular officers know life happens and the fact that you displayed immigrant intent then does not mean you still have immigrant intent. Furthermore the fact that you left soon after collapse of your relationship indicates you are law abiding and for you it was not USA by hook or crook, your move here was specifically for a relationship that no longer exists hence it is reasonable to discount your previous immigrant intent. 

 

Go ahead and withdraw your I-485 petition with a well written letter. I will advice you send it by confirmation receipt mail to ensure it is delivered. The rest is out of your hands. Try to heal and go about life.

 

If you want to visit the USA again in the future do not hesitate to do so. I would however advise you allow some time to pass before doing so, I believe the passage of time reduces the likelihood you will be considered to still have immigrant intent from your previous application. I am ambivalent as to whether you should apply for a visa or use ESTA on your next visit. I am sure some VJ members will have opinions on that.

Edited March 24, 2020 by Ray.Bonaquist

[reece-james 2]

Thank you very much for your advice. I will write to USCIS to withdraw the pending applications.

[Villanelle 4,122]

You can withdraw your AOS package but you dont have to. Once you left the US with out AP it ended your process.  Now of course its better to formally withdraw but if you dont the process wont continue. To withdraw just send a letter to the service center where you mailed your packet explaining you no longer want to continue and have left the US. You can add the reasons why just so its on the record. 

 

Your problem is going to be the fact that your K visa only gave you 90 days. You say you entered in Nov '19 and left March 23, 2020. So you passed the 90 days. From my understanding since you did not complete the AOS you now have overstay.  Heres an article from an attny blog about K overstay issues. Its not exactly your situation as the woman in the article remained in the US accumulating lots of overstay and subsequently found a new partner in the US she wanted to marry. A waiver for her overstay was available. It is unknown what type of visa you would be using to return to the US at some point in the future if you choose to return. Waivers may be available or they may not. https://immigrationlawyerslosangeles.com/i-601a-approval-for-k-1-visa-overstay/

[reece-james 2]

28 minutes ago, Villanelle said:

You can withdraw your AOS package but you dont have to. Once you left the US with out AP it ended your process.  Now of course its better to formally withdraw but if you dont the process wont continue. To withdraw just send a letter to the service center where you mailed your packet explaining you no longer want to continue and have left the US. You can add the reasons why just so its on the record. 

 

Your problem is going to be the fact that your K visa only gave you 90 days. You say you entered in Nov '19 and left March 23, 2020. So you passed the 90 days. From my understanding since you did not complete the AOS you now have overstay.  Heres an article from an attny blog about K overstay issues. Its not exactly your situation as the woman in the article remained in the US accumulating lots of overstay and subsequently found a new partner in the US she wanted to marry. A waiver for her overstay was available. It is unknown what type of visa you would be using to return to the US at some point in the future if you choose to return. Waivers may be available or they may not. https://immigrationlawyerslosangeles.com/i-601a-approval-for-k-1-visa-overstay/

 

 

Thank you for your reply. I had been reading up on the overstay after returning to Australia and found a source that stated that an overstay would not accrue unlawful presence in regards to a potential travel ban as I had a pending application for adjustment of status. I do have proof of the AOS application being received in the form of the I-797C, so hopefully this would be enough information along with copies of the withdrawal letters etc. if further travel to the United States was questioned. I appreciate you sending through the link to the article. 

 

[Villanelle 4,122]

6 hours ago, reece-james said:

 

 

Thank you for your reply. I had been reading up on the overstay after returning to Australia and found a source that stated that an overstay would not accrue unlawful presence in regards to a potential travel ban as I had a pending application for adjustment of status. I do have proof of the AOS application being received in the form of the I-797C, so hopefully this would be enough information along with copies of the withdrawal letters etc. if further travel to the United States was questioned. I appreciate you sending through the link to the article. 

 

As long as your NOA is dated before the 90 days you were given was up then you will be fine.  Make extra copies of everything. 

[reece-james 2]

1 minute ago, Villanelle said:

As long as your NOA is dated before the 90 days you were given was up then you will be fine.  Make extra copies of everything. 

Excellent news. My NOA is dated more than 1 month prior to my K1 Visa expiry date. I will ensure that I have multiple copies of all documentation. 

[TBoneTX 45,297]

That's good to hear.  Good luck!

[Villanelle 4,122]

I dont know why the first time I read it I thought you said you filed AOS in March? Guess I was more tired then I thought! Anyway Im sorry this happened to you.  I really dont understand how somebody can get married while carrying on an affair! And to make the person move half way across the world knowing you are not faithful to the relationship???! Seems very selfish. I guess you are lucky it ended sooner rather then later... And I guess your next step is to look into what you need to file for divorce. Theres usually a residence requirement so for you to file you may have to wait.  I wouldnt count on her to do it.

 

The only other thing I would suggest is copies of documentation that shows you didnt work while in the US. Depending what visa type you may use in the future they may want some sort of proof that you didnt work unauthorized in the US- because thats really the only thing they can get you for. Obviously there is no standard document showing someone didnt work but you can gather 'circumstantial' evidence showing you didnt like bank statements if you used savings while you were here/joint account statements for when you were here showing deposits were made from her income/tax returns showing income for 19 and 20 with paystubs showing what dates you worked-didnt work. Some people may say gathering such proofs is a bit overkill but I think its always better to play it safe then to be sorry. 

 

 

[reece-james 2]

9 hours ago, Villanelle said:

I dont know why the first time I read it I thought you said you filed AOS in March? Guess I was more tired then I thought! Anyway Im sorry this happened to you.  I really dont understand how somebody can get married while carrying on an affair! And to make the person move half way across the world knowing you are not faithful to the relationship???! Seems very selfish. I guess you are lucky it ended sooner rather then later... And I guess your next step is to look into what you need to file for divorce. Theres usually a residence requirement so for you to file you may have to wait.  I wouldnt count on her to do it.

 

The only other thing I would suggest is copies of documentation that shows you didnt work while in the US. Depending what visa type you may use in the future they may want some sort of proof that you didnt work unauthorized in the US- because thats really the only thing they can get you for. Obviously there is no standard document showing someone didnt work but you can gather 'circumstantial' evidence showing you didnt like bank statements if you used savings while you were here/joint account statements for when you were here showing deposits were made from her income/tax returns showing income for 19 and 20 with paystubs showing what dates you worked-didnt work. Some people may say gathering such proofs is a bit overkill but I think its always better to play it safe then to be sorry. 

 

 

Haha! That's ok, I threw a lot of dates in that first email. 

 

Yeah, look I don't know how anyone could do what she did either. I will never understand the reasons why, but what's done is now done and the only way through is to remember the good times over the years we spent together, forget the bad and move forward.

 

As far as the circumstantial evidence regarding not working is concerned, I have bank statements to show that I received no income from any source for the entire time that I was in the USA. I was living off savings and can prove as such if it comes up in the future. I have literally kept all documentation since we first filed for the K1 and everything that I have received since. As you have said, i'd rather be safe than sorry, so I'll make sure that I hang onto everything.