Divorce during AOS from a tourist visa

[Anonymousfornow 0]

My wife came on a b2 visa.  We married and filed AOS.  The marriage is not going well and we separated a month ago.  I want to file for divorce and pull my affidavit of support.  She took all of the immigration and marriage paperwork , so I don’t even have the file number or alien number.  If I file for divorce, will that automatically kill the AOS application?  At what point can I be safe in trying to work out the marriage but stay out of danger of being on the hook for the I864 due to a possible fraudulent marriage?  

[geowrian 22,337]

No, it will not. Pulling the I-864 will terminate her ability to AOS.

You can request the withdrawal via a letter to USCIS. If you don't have the case number, provide relevant info (each of your names and DOBs).

Contact USCIS phone support if you want specifics on what to provide.

 

The only way out of the I-864 prior to approval is to withdraw. Once the I-485 is approved, the only way out of the I-864 is via the conditions listed on it (she becomes a USC, she loses permanent residency, she dies, she can be credited with 40 quarters of SS credits, etc.).

Edited May 15, 2020 by geowrian

[Crazy Cat 41,903]

33 minutes ago, Anonymousfornow said:

My wife came on a b2 visa.  We married and filed AOS.  The marriage is not going well and we separated a month ago.  I want to file for divorce and pull my affidavit of support.  She took all of the immigration and marriage paperwork , so I don’t even have the file number or alien number.  If I file for divorce, will that automatically kill the AOS application?  At what point can I be safe in trying to work out the marriage but stay out of danger of being on the hook for the I864 due to a possible fraudulent marriage?  

As @geowrian said,  withdraw the I-864 ASAP!!!!   It must be done prior to approval of her green card.   

[cd37 229]

51 minutes ago, geowrian said:

No, it will not. Pulling the I-864 will terminate her ability to AOS.

You can request the withdrawal via a letter to USCIS. If you don't have the case number, provide relevant info (each of your names and DOBs).

Contact USCIS phone support if you want specifics on what to provide.

 

The only way out of the I-864 prior to approval is to withdraw. Once the I-485 is approved, the only way out of the I-864 is via the conditions listed on it (she becomes a USC, she loses permanent residency, she dies, she can be credited with 40 quarters of SS credits, etc.).

If the AoS interview hasnt happened, then she wont be able to adjust anyway bcoz you both have to be at the interview but as @geowrian said, pull i 864 by writing an letter to uscis.

[Crazy Cat 41,903]

4 minutes ago, cd37 said:

If the AoS interview hasnt happened, then she wont be able to adjust anyway bcoz you both have to be at the interview but as @geowrian said, pull i 864 by writing an letter to uscis.

There have been a number of recent cases which were approved without an interview....  @Sarge2155 comes to mind.

Edited May 15, 2020 by Lucky Cat

[cd37 229]

6 minutes ago, Lucky Cat said:

There have been a number of recent cases which were approved without an interview....  @Sarge2155 comes to mind.

Not sure but if you never been interviewed before they wont approve it without interview except k1 i believe.

[Crazy Cat 41,903]

1 minute ago, cd37 said:

Not sure but if you never been interviewed before they wont approve it without interview except k1 i believe.

You might be right....but I wouldn't take a chance.....😃

[geowrian 22,337]

1 minute ago, cd37 said:

Not sure but if you never been interviewed before they wont approve it without interview except k1 i believe.

That has historically been the case. However, there are a small handful of non-K1 people that have reported an approval w/o interview in the past month, given the COVID situation. No idea how common it is or what it would be like by the time of the OP's case's interview.

Just now, Lucky Cat said:

You might be right....but I wouldn't take a chance.....😃

^This, exactly

[Just Paul 4,595]

Don't delay - write USCIS and pull the I-864 with all the info you have.

[irishoxford 38]

Another point here is that a well-intended attempt at reconciliation may be seen in her favour if she takes part in it (i.e. going to marital therapy).  Would weigh that heavily, and be aware that she may be aware of that too.  
 

Also, from what I know, USCIS goes on the state’s definition of (legal) separation and divorce (someone correct me if I’m wrong), so make sure that you’re aware of that also.  Some states aren’t as formal about separations as a pathway to divorce, and, again, that could be in her favour.  
 

Although it’s often about initial intent, some USCIS officers may decide otherwise.  Hopefully someone here (as unfortunate as it is) will have experience to answer a little more fully.
 

J 

[geowrian 22,337]

26 minutes ago, irishoxford said:

Although it’s often about initial intent, some USCIS officers may decide otherwise.  Hopefully someone here (as unfortunate as it is) will have experience to answer a little more fully.

More specifically, the I-485 requires an underlying petition.

If you file an I-130 + I-485 together, typically they adjudicate them together. Either way, the I-130 requires a valid marriage. If divorced, that I-130 is no longer valid.

 

(Note that this differs from AOS from K-1 cases, which use an I-129F. That petition does not become invalid due to divorce, so technically one can AOS - with a valid I-864 from the original petitioner still - after divorce in that case, per Matter of Sesay).

Edited May 15, 2020 by geowrian

[Nitas_man 3,100]

18 hours ago, Anonymousfornow said:

My wife came on a b2 visa.  We married and filed AOS.  The marriage is not going well and we separated a month ago.  I want to file for divorce and pull my affidavit of support.  She took all of the immigration and marriage paperwork , so I don’t even have the file number or alien number.  If I file for divorce, will that automatically kill the AOS application?  At what point can I be safe in trying to work out the marriage but stay out of danger of being on the hook for the I864 due to a possible fraudulent marriage?  

You simply have to send a letter in to USCIS withdrawing your petition and affidavit of support.

 

As to working out the marriage?  She’ll have to go home and you can work things out or not long distance

Edited May 16, 2020 by Nitas_man

[portorusa 431]

3 hours ago, Nitas_man said:

 

As to working out the marriage?  She’ll have to go home and you can work things out or not long distance

Nothing is wrong with wanting to fix the marriage. We don’t know all the details of this couple’s relationship. There may still be feelings for each other. 

And even if there is a divorce, she will not have to go home, IMHO. 

[Crazy Cat 41,903]

37 minutes ago, portorusa said:

And even if there is a divorce, she will not have to go home, IMHO. 

She will be out of status as soon as the I-485 is denied.........

[SalishSea 17,845]

1 hour ago, portorusa said:

And even if there is a divorce, she will not have to go home, IMHO. 

How?