divorce from visa holder w/out AOS

[crb3 0]

I'm kind of on the other end of the spectrum... I came on a k-1 visa and married a man in the US, but our marriage did not work out. We did not lie to each other or embelish the truth, I just wasn't as happy as i thought I would be, and my husband didn't spend any time with me. When I realized that, I left him and stayed with friends for some time, then with the man who is my husband now. I was living with him while I was waiting for the divorce from my first husband to be finalized. I filed for the divorce myself, and I didn't care if I had to leave the country because living in the US wasn't my goal, but I stayed there until the divorce was finalized, then I married my new husband and then promptly left the US. My ex-husband never applied for my AOS. Contrary to someone's assertion above, it's the responsibility of the US Citizen to file for his/her foreign spouse. From the time my K-1 lapsed until I left the US it's been little less than a year. From what i've been told by the lawyer a person like me or your husband can't have another person other than the original fiance/husband wife file for them. He won't be able to adjust his status with anyone else but you. He has to leave. The longer he stays the bigger the ban he'll have. After a year's overstay the ban is 10 years. It can be waived but not for certain. The only way he could file AOS for hiself and stay would be if he could prove abuse from you. It would be pretty hard for him to prove, especially because you're a woman, but just keep that in mind, if he likes to lie and is determined to stay he might try to... Anyway, good luck to you, and don't lose faith.

[southernchic 0]

Thanks. This is very helpful information. It would be great if he could stay on his own.

southernchick,

You do not apply for his change of status - he does. You do have to support his application - unless he applies after the divorce is final - by sponsoring him financially with an I-864 affidavit of support.

He is supposed to leave the country when his period of authorized stay, as indicated on his I-94, expires. He can apply to extend the stay.

Yodrak

I am now officially a member of the "It just didn't work out VJ caucus".

Since my husband moved to the US a year ago on his K-3 visa, I never applied for a change in his status (AOS). Bascially, when he arrived I learned that he'd lied to me about something really important throughout our two year relationship and made things worse by telling more small lies once he was here. I tried to see if I could move past the dishonesty and other challenges, but just couldn't. I am a USC seeking the divorce against his wishes. Once its finalized he will legally have to leave the country. This I know.

My question is: If he decides to return home to Ethiopia will it help his future chances of returning to the US? I have a feeling that he won't want to leave. My thinking is that if he has a record of living in the US for a year and moving back when he was legally supposed to his chances of returning will be better in the future than if he'd never been here at all or overstayed his visa.

I know that no one can know for sure but I am very curious about others opinions/experiences. (BTW, I have no intention of applying for the AOS.)

[featherB 1]

Contrary to someone's assertion above, it's the responsibility of the US Citizen to file for his/her foreign spouse.

No it's not. The foreign spouse is the one who files for AOS, on the basis of marriage to a US citizen. If they entered on a K-1 like you did, they can't file on the basis of marriage to another US citizen... but that still doesn't make it the USC's 'responsibility' to file for their AOS. They do that themselves. (but if the USC refuses to file the I-864 affidavit of support....)

Edited July 6, 2007 by featherB

[taurean 0]

So southernchic: has your husband actually stayed past the date stamped on the I-94? Since he has been here for a year and no AOS was filed, it seems that it's a good possibility that he has overstayed, though I am not sure how the K-3 visa works or how long the visa is valid. What other option would he have to base a petition to adjust status on other than marriage to you? Possibly an employment based visa? But then again, I am not sure if that's possible either.

Like crb3 said, the longer he overstays, the longer the ban. Is he aware of all the legal ins and outs of his situation? Maybe printing out the statutes and showing them to him in black and white will make it clearer for him. If after giving him the legal ramifications, if he chooses to stay, you've done your job.

[taurean 0]

I just went back and read the K-3 visa guide and I now know that the K-3 is a multiple entry one, good for two years. So I guess he would able to stay until and unless he was able to adjust his status in some other way. So I guess I stand by what I said...if you present the legalities in black and white, then it's on him to decide what to do next.

[southernchic 0]

He's on a 2-year visa that expires in Spring 2008. If he can change his visa status based on employment or something else, I'll let him know that.

S

So southernchic: has your husband actually stayed past the date stamped on the I-94? Since he has been here for a year and no AOS was filed, it seems that it's a good possibility that he has overstayed, though I am not sure how the K-3 visa works or how long the visa is valid. What other option would he have to base a petition to adjust status on other than marriage to you? Possibly an employment based visa? But then again, I am not sure if that's possible either.

Like crb3 said, the longer he overstays, the longer the ban. Is he aware of all the legal ins and outs of his situation? Maybe printing out the statutes and showing them to him in black and white will make it clearer for him. If after giving him the legal ramifications, if he chooses to stay, you've done your job.

[desert_fox 32]

My ex-husband never applied for my AOS. Contrary to someone's assertion above, it's the responsibility of the US Citizen to file for his/her foreign spouse.

Wanna bet??

Who signs the petition???....ANSWER: The applicant....i.e. the person wanting to adjust status.

If he has not filed for AOS....or had the interview...there will no way that he could stay based upon marriage to a US citizen. He cannot adjust status based upon marriage to some other USC.

[Donna A 4]

yep thats right. the aos is the responsibility of the foreigner not the us citizen. even i cant call and inquire about my husbands aos unless he is present. it is his petition (the foreigner).

[blah0323 0]

Sorry to hear this, but I hope all works out for you. Sorry I have no advice for you, but will pray for you and the situation, that all works out.

[Bobbie 1]

That would be my question, I think you would still be financially responsible for him. The affidavit of support doesn't end with divorce.

[Yodrak 7]

taureen,

You are confusing the visa with permission to be in the USA, and they are not the same thing.

You were right with your very first question - has the person stayed beyond the date marked on the I-94. The visa and when it expires have nothing to do with overstay.

Yodrak

I just went back and read the K-3 visa guide and I now know that the K-3 is a multiple entry one, good for two years. So I guess he would able to stay until and unless he was able to adjust his status in some other way. So I guess I stand by what I said...if you present the legalities in black and white, then it's on him to decide what to do next.

So southernchic: has your husband actually stayed past the date stamped on the I-94? Since he has been here for a year and no AOS was filed, it seems that it's a good possibility that he has overstayed, though I am not sure how the K-3 visa works or how long the visa is valid. .....

[taurean 0]

Yodrak: thanks for the clarification. All these terms getting thrown around is confusing.