K2 AOS, RFI received- I AM ALREADY DIVORCED

[HRQX 4,145]

12 minutes ago, geegeemarie said:

You think reaching out to my ex and have her do I-864, will work?

If your ex agrees to fill out I-864 forms for them, they can proceed with K-2 AOS.

 

If not, consult a competent immigration attorney to ask if they can start anew with I-130 petitions from you, filed concurrently with new I-485 applications. You should also ask the attorney if any BIA cases (Matter of Song, etc.) would affect this path.

 

If there is no clear AOS path, then there is still consular processing. What are your children ages? None of their unlawful time when they were under the age of 18 counts toward the three- and ten-year bars.

[mushroomspore 3,044]

Just now, HRQX said:

If your ex agrees to fill out I-864 forms for them, they can proceed with K-2 AOS.

 

If not, consult a competent immigration attorney to ask if they can start anew with I-130 petitions from you, filed concurrently with new I-485 applications. You should also ask the attorney if any BIA cases (Matter of Song, etc.) would affect this path.

 

If there is no clear AOS path, then there is still consular processing. What are your children ages? None of their unlawful time when they were under the age of 18 counts toward the three- and ten-year bars.

So OP can still do K-2 AOS if ex does I-864 even though they're divorced? I'm guessing this is because the K-2's are children, rather than adult spouses of a US citizen?

[geegeemarie 0]

1 minute ago, HRQX said:

If your ex agrees to fill out I-864 forms for them, they can proceed with K-2 AOS.

 

If not, consult a competent immigration attorney to ask if they can start anew with I-130 petitions from you, filed concurrently with new I-485 applications. You should also ask the attorney if any BIA cases (Matter of Song, etc.) would affect this path.

 

If there is no clear AOS path, then there is still consular processing. What are your children ages? None of their unlawful time when they were under the age of 18 counts toward the three- and ten-year bars.

My kids are 12 and 14

[Pinkrlion 2,724]

15 minutes ago, geegeemarie said:

Hi,

 

Yes that's what i'm trying to do.. So if that benefit is no longer available, How do I start the process again? Thank you.

Since you did not AOS based on their K-2 Status, they have no status now.  They will have to go home and you will have to file for I-130.  I would suggest you talk to a lawyer.

[Pinkrlion 2,724]

18 minutes ago, mushroomspore said:

So OP can still do K-2 AOS if ex does I-864 even though they're divorced? I'm guessing this is because the K-2's are children, rather than adult spouses of a US citizen?

The ex cannot complete the AOS process either, it is years beyond when the K-2 I-94 expired.  The ex would have to refile AOS in the US by filing I-130/I-485.  Also, not clear on since they are now divorced, can ex file for the children.  

 

23 minutes ago, Ontarkie said:

~~Moved to Effects of Major Family Changes, from AOS Family - the OP's case involves DV and this forum is better suited.~~

OP ROC with Divorce Waiver.  

Edited November 24, 2020 by Ontarkie
edited my own post

[Boiler 45,558]

How can they file to adjust,they are out of status and are not immediate relatives?

[NikLR 13,227]

11 minutes ago, Pinkrlion said:

The ex cannot complete the AOS process either, it is years beyond when the K-2 I-94 expired.  The ex would have to refile AOS in the US by filing I-130/I-485.  Also, not clear on since they are now divorced, can ex file for the children.  

 

OP ROC with Divorce Waiver.  

The ex cannot.  They no longer are the step-parent of the children.

 

The OP must file the I-130.  Because the OP is not a USC the children cannot adjust their status (file I-485) until their priority date is current but they also need to be here legally to do so.  The children are currently deportable and illegal in the USA.  They do not incur overstay until they reach the age of 18 but they must be here legally to adjust status.  They will need to interview in their home country. 

 

3 minutes ago, Boiler said:

How can they file to adjust,they are out of status and are not immediate relatives?

They can't.

Edited November 24, 2020 by NikLR
added spaces.

[HRQX 4,145]

46 minutes ago, mushroomspore said:

So OP can still do K-2 AOS if ex does I-864 even though they're divorced? I'm guessing this is because the K-2's are children, rather than adult spouses of a US citizen?

That's what Matter of Sesay alludes to. "The statutory and regulatory language does not prohibit adjustments based on a valid marriage that is no longer intact" https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3707.pdf

 

Then, in Matter of Song it was clarified that I-864 from original sponsor would still be needed. https://www.justice.gov/eoir/page/file/1112411/download

Edited November 24, 2020 by HRQX

[HRQX 4,145]

4 hours ago, geegeemarie said:

I did not file for I-130. I don't know what that is.

It's a petition: https://www.uscis.gov/i-130 2 would be filed (1 per child) to start consular processing "The beneficiary will not apply for adjustment of status in the United States, but he or she will apply for an immigrant visa abroad at the U.S. Embassy or U.S. Consulate in"

The time outside the US would potentially be limited. Some lucky cases just spend 2 to 3 weeks outside the US for Panel Physician exam and visa interview. Other cases end-up spending months (e.g. prolonged Administrative Processing) outside the US before returning with Immigrant Visa.

Edited November 24, 2020 by HRQX

[Boiler 45,558]

Well with a DV issue seems the I 864 is somewhat unlikely

[Timona 4,207]

2 hours ago, HRQX said:

That's what Matter of Sesay alludes to. "The statutory and regulatory language does not prohibit adjustments based on a valid marriage that is no longer intact" https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3707.pdf

 

Then, in Matter of Song it was clarified that I-864 from original sponsor would still be needed. https://www.justice.gov/eoir/page/file/1112411/download

 

2 hours ago, NikLR said:

The ex cannot.  They no longer are the step-parent of the children.

 

The OP must file the I-130.  Because the OP is not a USC the children cannot adjust their status (file I-485) until their priority date is current but they also need to be here legally to do so.  The children are currently deportable and illegal in the USA.  They do not incur overstay until they reach the age of 18 but they must be here legally to adjust status.  They will need to interview in their home country. 

 

They can't.

2 hours ago, Pinkrlion said:

The ex cannot complete the AOS process either, it is years beyond when the K-2 I-94 expired.  The ex would have to refile AOS in the US by filing I-130/I-485.  Also, not clear on since they are now divorced, can ex file for the children.  

 

OP ROC with Divorce Waiver.  

 

For my own education and hopefully, OP.

From the Matter of Song, OP would have been eligible to file for the kids, by having both her (OP) AND the ex sign the I-864. However, per @Pinkrlion that is impossible now as it is well beyond the validity of their original K-visas. So the only option left is consular processing by filing I-130. 

 

Can the kids remain till close to their consular adjudication then leave (and hopefully the case doesn't drag till past their 18th birthday) or will they have to leave ASAP? I understand that they are currently deportable.

Edited November 24, 2020 by Timona

[HRQX 4,145]

5 minutes ago, Timona said:

From the Matter of Song, OP would have been eligible to file for the kids, by having both her (OP) AND the ex sign the I-864. However, per @Pinkrlion that is impossible now as it is well beyond the validity of their original K-visas.

Can still AOS in that case. I-94 expiration is irrelevant in K2 AOS filing. But as @Boiler mentioned, getting ex to sign I-864 is "somewhat unlikely" as relationship involved DV from ex.

5 minutes ago, Timona said:

Can the kids remain till close to their consular adjudication then leave (and hopefully the case doesn't drag till past their 18th birthday)

Yes

Edited November 24, 2020 by HRQX

[geegeemarie 0]

26 minutes ago, HRQX said:

Can still AOS in that case. I-94 expiration is irrelevant in K2 AOS filing. But as @Boiler mentioned, getting ex to sign I-864 is "somewhat unlikely" as relationship involved DV from ex.

Yes

I will try to talk to my ex..

[Timona 4,207]

11 minutes ago, HRQX said:

Can still AOS in that case. I-94 expiration is irrelevant in K2 AOS filing. But as @Boiler mentioned, getting ex to sign I-864 is "somewhat unlikely" as relationship involved DV from ex.

Yes

 

Hhahahaha. I sometimes don't understand @Boiler. But now I do understand 

 

Okay. Now we are making strides. So we have 2 options.

1. File I-130 for each child, let them stay but return to mother country right before adjudication of their petition OR
2. Seek the ex to sign I-864, the OP adds her own I-864 per the matter of Song and sends both to USCIS.

For me, looking at this, the only plausible route is 1. Why?

1. OP ROCed based on DV. USCIS IO will be very interested as to how the ex, having been accused of DV, would still be happy and willing to sign I-864 for OP.
2. We are talking about DV here. OP requires lady luck by her, not only in convincing ex to sign I-864., but let alone approach, especially if there is a restraining order.

OP, if I were you, I would go the first route, that is filing I-30s. You do not want to face a jilted ex. Just forget about the $2600 that you already paid to AOS for the kids. USCIS will not return it.

 

10 minutes ago, Sarge777 said:

Divorced due to act of criminality? Or lack of passion? Important to specific due to immigration issue probability.

 

if cause was foreign and not of natural mean, please explain. Good luck 

 

DV. OP already mentioned it somewhere here

[Timona 4,207]

3 minutes ago, geegeemarie said:

I will try to talk to my ex..

 

This should be interesting.

Does ex even know you petitioned based on DV? By you trying to approach, I gather ex does not know. I stand corrected.