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

[HRQX 4,145]

49 minutes ago, Coco8 said:

Is your AOS from H1B still ongoing?

It looks like OP just has 1 pending AOS. It's the Immediate Relative-based AOS but OP's current NIV status is H-1B.

Edited February 11, 2021 by HRQX

[Coco8 1,042]

10 hours ago, HRQX said:

It looks like OP just has 1 pending AOS. It's the Immediate Relative-based AOS but OP's current NIV status is H-1B.

Ok. Because he said "I had filed for AOS from H1B back in Sept 2019. ", I thought he had a GC application through work that was pending

[justmarriedusciti 7]

On 2/11/2021 at 1:21 AM, Coco8 said:

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?

 

 

The AoS from H1B is still ongoing because USCIS keeps on delaying our interview. They delayed it yet again for another few weeks. 

I have evidence of her being abusive, and I will be providing that to my immigration lawyer. She had been abusive for a long time even before she got pregnant. We got her tests done and everything after the birth of the child and her hormones came out fine. She's just messed up in the head. 

Now that our interview is not happening for a few months, what would happen if I file VAWA forms? How much time do I need to allow USCIS to accept the VAWA petition and move my current I-485 to VAWA? I don't know if I would have to restart with a fresh I-485 and pay all the fee again? 

[Boiler 45,874]

I see you have an Immigration Lawyer, which is good.

 

Do you also have a Divorce Lawyer?

 

Have you obtained a place of safety?

 

Sort of surprised your wife has not withdrawn the I 864, usually that would be the first thing.

[justmarriedusciti 7]

1 hour ago, Boiler said:

I see you have an Immigration Lawyer, which is good.

 

Do you also have a Divorce Lawyer?

 

Have you obtained a place of safety?

 

Sort of surprised your wife has not withdrawn the I 864, usually that would be the first thing.

I have moved out of our house and live with a friend until we get a divorce. Yes both of our lawyers are talking to each other about finalizing things. 

I'm just wondering what will happen to my existing AoS if I file VAWA? Will that AoS be considered null and void by USCIS and I will have to file a new I-485? Or will that previous I-485 be usable for the I-360?

Edited February 16, 2021 by justmarriedusciti

[Villanelle 4,122]

You should join the VAWA thread in this subforum. 

 

To answer your question though theres something called interfiling and/or hold in abeyance. They are administratively created procedures and are granted with their discretion, so it is not guaranteed but is almost always granted. 

 

As you know to get a GC you file the 485 which allows you to get the c09 EAD while its pending. But they dont just let anyone randomly file the 485, you need an underlying basis. This is the 130 or 360. You currently have a 130/485 pending and want to switch the pending 485 to the 360 as the underlying basis. 

 

In order for them to do such a switch or transfer BOTH pieces have to be active/pending. So on the 130 side- it must all still be pending, once the 864 is withdrawn it is no longer pending. For the 360 side you must have filed and gotten a NOA establishing a case. 

 

Interfiling is the term used when you file the 360 and ask when you file for them to transfer your 485 to the newly created 360. Again your 130 package must still be active for them to do such a transfer. Interfiling requests can also be made after both cases have already been filed because once more you need both sides of the transfer to be active to do such a transfer of underlying basis. 

 

If both sides are not active because you havent yet filed the 360 (theres nothing you can do about the 130 side to prevent them from withdrawing) then the concept of hold in abeyance comes into play. Hold in abeyance is exactly what it sounds like- you are asking them to hold your current AOS case until all the pieces are in place and it can be transferred. Its a related courtesy they do and is also not guaranteed to be granted. 

 

If you have an upcoming interview you would attend it and request they hold in abeyance your 485 as you are going to be filing the 360.  Some Officers are friendly and helpful and will reassure you they are going to hold it. Others can be cold and indifferent and leave you unsure if they are actually going to hold it or not. If so you can follow up using your attny or congressman if needed.  

 

Ideally you would want to have already filed the 360 (and requested interfiling) and be able to bring the NOA for the 360 with you to your interview. In immigration everything you file will move along at its own pace regardless of other filings so to speak and it can take time for things to catch up to each other. So if you have an interview scheduled for the pending 485 based on the 130 you MUST attend no matter what. 

 

If you are not able to file the 360 prior to the interview again you must go to the interview and request they hold it (and ultimately transfer it). They may direct you to send the NOA for the 360 when you get it. Holding does not automatically mean it will be transferred so if it was only held you need to follow up and make sure it is ultimately transferred.