Divorce prior to I-485 AOS interview. Wife had been abusing me. How do I proceed? (merged)

[justmarriedusciti 7]

My wife had been verbally and physically abusing me for the last few months and I finally couldn't take it anymore and therefore have decided to divorce her. While I haven't filed divorce yet, I would like to know how this new turn affects my case. 

I had filed for AOS from H1B back in Sept 2019. We have been married for less than 2 years and have a 6 month old child. 

We went through counseling for a few months last year and things got better a little bit but afterwards they took for a worse turn when she started first verbally and then physically assaulting me. This continued for a while before I finally pulled out my phone one day and captured what she does to me in front of the baby. The verbal abuse still didn't stop - sometimes in front of the baby too. 

I spoke to a family lawyer and I was told to file for divorce because honestly this is too much for my mental health. 

But the problem now is twofold: On one hand is my AOS, and on the other my child. I don't want to abandon the first because that would mean I could face deportation. 

What is the way to convince the USCIS officers during the interview that I had been a victim of abuse (I have an adult witness) for long and that denying my case would mean me being away from the infant child? 

[HRQX 4,145]

1 hour ago, justmarriedusciti said:

I had filed for AOS from H1B back in Sept 2019.

Keep in mind to what lengths she could resort to as retaliation. For example, she could easily withdraw the I-130, I-864, or both.

 

If she does the above actions, you still have VAWA option. You would have to file Form I-360 with a new I-485: https://www.uscis.gov/humanitarian/battered-spouse-children-and-parents

Filing Process

• You must complete the Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, including all supporting documentation.
• You must file the form with the Vermont Service Center (VSC).
• If you are living abroad at the time of filing the self-petition, you may file Form I-360 if:
  • the abuser is an employee of the U.S. government,
  • the abuser is a member of the uniformed services, or
  • you were subjected to battery or extreme cruelty in the United States.
• If you are a self-petitioning spouse or child and you meet all filing requirements, you will receive a notice (Prima Facie Determination Notice) valid for 150 days that you can present to government agencies that provide certain public benefits to certain victims of domestic violence.
• If your Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant is approved and you do not have legal immigration status in the United States, we may place you in deferred action, which allows you to remain in the United States

Edited February 3, 2021 by HRQX

[TBoneTX 46,041]

Thread is moved to the Effects of Major Changes forum, to be among similar threads.

[justmarriedusciti 7]

4 minutes ago, HRQX said:

Keep in mind to what lengths she could resort to as retaliation. For example, she could easily withdraw the I-130, I-864, or both.

 

If she does the above actions, you still have VAWA option. You would have to file Form I-360 with a new I-485: https://www.uscis.gov/humanitarian/battered-spouse-children-and-parents

Filing Process

• You must complete the Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, including all supporting documentation.
• You must file the form with the Vermont Service Center (VSC).
• If you are living abroad at the time of filing the self-petition, you may file Form I-360 if:
  • the abuser is an employee of the U.S. government,
  • the abuser is a member of the uniformed services, or
  • you were subjected to battery or extreme cruelty in the United States.
• If you are a self-petitioning spouse or child and you meet all filing requirements, you will receive a notice (Prima Facie Determination Notice) valid for 150 days that you can present to government agencies that provide certain public benefits to certain victims of domestic violence.
• If your Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant is approved and you do not have legal immigration status in the United States, we may place you in deferred action, which allows you to remain in the United States

She won't be revoking the I-130 and I-864. But she won't go to the interview because she knows she will have to lie about her abusive past and she knows I plan on fully telling the officer about it and showing him the evidence. 

What will happen to my current EAD if I pursue the VAWA option? Would I have to stop working for my employer?

[Sparkle✨ 372]

17 hours ago, justmarriedusciti said:

She won't be revoking the I-130 and I-864. But she won't go to the interview because she knows she will have to lie about her abusive past and she knows I plan on fully telling the officer about it and showing him the evidence. 

What will happen to my current EAD if I pursue the VAWA option? Would I have to stop working for my employer?

If your current AOS is denied, your EAD becomes null and void. Therefore, you can’t continue working.

[justmarriedusciti 7]

My USC wife and I have decided to divorce and our I 485 interview is happening soon. She will go to the interview with me, and both of us will be honest. Our marriage was entered into with good faith and we have a child and own several assets with both our names on it. Our bills both have our names on them, and the only bank account we use is a joint account. 

Our plan is to be honest with the USCIS on interview day about the fact that we have signed the divorce papers. The truth is we are still working things out, and if they do we will cancel the divorce process. But as the lawyers have told us - we are MARRIED until the divorce decree is made. Up till that point, we are still not single.

My question is: Does the USCIS see it that way too? How do we explain to them that the divorce hasn't happened yet and that we are still in the marital bond that we entered into with good faith?  

[Letspaintcookies 2,310]

The AOS can be granted as long as the I-864 remains valid. Means if the sponsor is willing to stick with it even if you divorce the application can get approved.

[HRQX 4,145]

2 minutes ago, Letspaintcookies said:

Means if the sponsor is willing to stick with it even if you divorce the application can get approved.

That is incorrect for AOS based on a pending or approved I-130. If the divorce is finalized before I-485 is adjudicated, then there is no longer an underlying I-130.

 

In OP's other thread, filing I-360 for VAWA path has been mentioned.

[Letspaintcookies 2,310]

Just now, HRQX said:

That is incorrect for AOS based on a pending or approved I-130. If the divorce is finalized before I-485 is adjudicated, then there is no longer an underlying I-130.

 

In OP's other thread, filing I-360 for VAWA path has been mentioned.

Oh, I didn't checked for the path of AOS. Yes I'll take that back then.

[justmarriedusciti 7]

16 minutes ago, HRQX said:

That is incorrect for AOS based on a pending or approved I-130. If the divorce is finalized before I-485 is adjudicated, then there is no longer an underlying I-130.

 

In OP's other thread, filing I-360 for VAWA path has been mentioned.

My immigration lawyer has said that we could pursue VAWA (there's a very strong case) if all else fails. But I really don't wish to open that can of worms. 

 

Having said that, how long does I 485 take to be adjudicated after interview?

Edited February 8, 2021 by justmarriedusciti

[millefleur 5,047]

**Similar threads merged. Please keep all discussion about your case to this thread.**

 

VJ Moderation

[Demise 1,337]

15 hours ago, justmarriedusciti said:

My immigration lawyer has said that we could pursue VAWA (there's a very strong case) if all else fails. But I really don't wish to open that can of worms. 

 

Having said that, how long does I 485 take to be adjudicated after interview?

I mean VAWA might be your only option if she won't play ball in regards to the I-130/I-485 interview. Yes, I know it's a can of worms, can't put the genie back in the bottle, etc once you file for it, but a lot of us have (myself included) and got approved. If she no shows you need to tell the officer that you plan to file VAWA and to hold your I-485 for the 30 days and you'll send in the receipt notice for I-360. The regulations permit you to switch an I-485 from I-130 or I-129F based adjustment to a VAWA adjustment.

 

I can tell you for sure that you won't get approved if she no shows at the interview. Decisions on the I-485 happen pretty soon after the interview (people have gotten texts telling them they got approved while walking down the parking lot), the Immigration Officer generally doesn't have the power to approve or deny you on the spot and they will just take all their notes and throw the whole thing up the stack, but if they recommend you for approval you will be approved fast, if not then you might get approved, RFE'd, or denied by whoever is up the stack.

[justmarriedusciti 7]

22 hours ago, Demise said:

I mean VAWA might be your only option if she won't play ball in regards to the I-130/I-485 interview. Yes, I know it's a can of worms, can't put the genie back in the bottle, etc once you file for it, but a lot of us have (myself included) and got approved. If she no shows you need to tell the officer that you plan to file VAWA and to hold your I-485 for the 30 days and you'll send in the receipt notice for I-360. The regulations permit you to switch an I-485 from I-130 or I-129F based adjustment to a VAWA adjustment.

 

I can tell you for sure that you won't get approved if she no shows at the interview. Decisions on the I-485 happen pretty soon after the interview (people have gotten texts telling them they got approved while walking down the parking lot), the Immigration Officer generally doesn't have the power to approve or deny you on the spot and they will just take all their notes and throw the whole thing up the stack, but if they recommend you for approval you will be approved fast, if not then you might get approved, RFE'd, or denied by whoever is up the stack.

Okay let's say she shows up for interview, and then I could do one of the two things:

• Not tell them all the details of abuse she committed against me
• Tell them I plan on filing for VAWA

And one more question: If I do file for VAWA, does it matter to the USCIS on who filed for divorce or if we have filed for divorce yet or not? 

[Demise 1,337]

6 hours ago, justmarriedusciti said:

Okay let's say she shows up for interview, and then I could do one of the two things:

• Not tell them all the details of abuse she committed against me
• Tell them I plan on filing for VAWA

And one more question: If I do file for VAWA, does it matter to the USCIS on who filed for divorce or if we have filed for divorce yet or not? 

No, it doesn't matter, but if you get an at-fault ruling against you then that will look bad and you will have to argue against it in your brief.

[Coco8 1,042]

Is your AOS from H1B still ongoing? If it's still ongoing you could check what's up with that and continue through that path?

 

If you divorce and your wife is abusive, you need to gather evidence in case you want full custody of the child. Just wondering if she became abusive only after having the baby and this could be a medical issue? 

 

My issue with the interview/WAVA is that if she shows to the interview, you cannot lie about how happy marriage you have and then do WAVA. Isn't that misrepresentation?

 

 

Edited February 11, 2021 by Coco8