Dating while separated

[vilmj 2]

What is USCIS’ view on dating while separated? This is an informal separation. I petitioned for my first spouses green card which was approved without delays or RFE’s in 2008. They are now a US citizen. Things went downhill afterwards, keep in mind we’d been together since 2003. We informally separated 2011 and finalized our divorce in February 2012. I met my current spouse in 2011 while separated and married August 2012. We are just now applying for their green card. They currently have DACA. I’m stressing over the overlap in relationships. Anyone with a similar story?

** posted for a friend. 

[nastra30 2,287]

9 minutes ago, vilmj said:

What is USCIS’ view on dating while separated? This is an informal separation. I petitioned for my first spouses green card which was approved without delays or RFE’s in 2008. They are now a US citizen. Things went downhill afterwards, keep in mind we’d been together since 2003. We informally separated 2011 and finalized our divorce in February 2012. I met my current spouse in 2011 while separated and married August 2012. We are just now applying for their green card. They currently have DACA. I’m stressing over the overlap in relationships. Anyone with a similar story?

** posted for a friend. 

If your friend can create an account here and post the questions by themselves that will great. How did the current DACA spouse enter the country?

[vilmj 2]

11 minutes ago, nastra30 said:

If your friend can create an account here and post the questions by themselves that will great. How did the current DACA spouse enter the country?

They entered illegally at 7 years old. They will do consular process in Mexico. 

[Mike E 11,739]

16 minutes ago, vilmj said:

They entered illegally at 7 years old. They will do consular process in Mexico. 

I doubt USCIS or State cares about the overlap.  
 

The bigger hurdle will be over coming the illegal entry.  

[Ontarkie 14,223]

~~One non conductive post removed Stick to answering the OP's questions~~

Edited April 21, 2022 by Ontarkie

[nastra30 2,287]

32 minutes ago, vilmj said:

They entered illegally at 7 years old. They will do consular process in Mexico. 

Ok. Seems you are already aware they'll have to interview in Mexico. As far as the 2nd marriage is considered you can petition 2nd spouse; overlap shouldn't be that of a concern but the 2nd petition could attract extra scrutiny.

[Family 3,988]

She does not need to do Consular. As DACA, she applies for Advance Parole, go out for the day, comes back and she can file I-485 here. 
Are you DIY ing this , notario or attorney?
 

The overlap romance is not an issue…glad you waited a minute to remarry! 

[Mike E 11,739]

11 minutes ago, Family said:

She does not need to do Consular. As DACA, she applies for Advance Parole, go out for the day, comes back and she can file I-485 here. 

Well I was skeptical.  I did my own research and it turns out you are 100 percent correct. 
 

What an incredible loop hole.  

[nastra30 2,287]

18 minutes ago, Family said:

She does not need to do Consular. As DACA, she applies for Advance Parole, go out for the day, comes back and she can file I-485 here. 

Actually, this is not entirely correct either. It all depends when they applied for DACA. If they accrued unlawful stay in US after age 18 before applying for DACA, they can't use the advanced parole route. They'll need a waiver.

[vilmj 2]

50 minutes ago, Family said:

She does not need to do Consular. As DACA, she applies for Advance Parole, go out for the day, comes back and she can file I-485 here. 
Are you DIY ing this , notario or attorney?
 

The overlap romance is not an issue…glad you waited a minute to remarry! 

Thank you. They looked into Advance Parole but it is limited to certain scenarios and none apply. They are using a lawyer and it must be done via Consular Process. Lawyer wasn’t too concerned with the overlap either but they just wanted to check with others who’ve had similar timelines/experiences.

Edited April 21, 2022 by vilmj

[Demise 1,283]

11 minutes ago, nastra30 said:

Actually, this is not entirely correct either. It all depends when they applied for DACA. If they accrued unlawful stay in US after age 18 before applying for DACA, they can't use the advanced parole route. They'll need a waiver.

Not true. Travel on Advance Parole does not trigger a re-entry bar even if you have unlawful presence as per Matter of Arrabally (BIA, 2012). So the travel doesn't trigger a re-entry bar (which would require a waiver) and grants them a lawful parole in the understanding of INA 245(a) which is a prerequisite for AOS. Unlawful presence also isn't a factor for adjustment of status via marriage to a US Citizen as per INA 245(c)(2).

 

When you got DACA comes into play for cases when you cannot adjust in US after being in US illegally (basically anything aside marriage to USC, being the parent of a USC over 21, or being an unmarried child under 21 of USC, VAWA, SIJ, and a few special categories), which means that you can only do consular processing, then whether or not you will need a waiver depends on when you got DACA (under 18 + 180 days old - no, above - yes). This is for example how David Dobrick got his green card, he got DACA while under 18, then he did either EB-1 or EB-5, had no unlawful presence so he just left and did consular processing for it with no need for a waiver.

Edited April 21, 2022 by Demise

[Family 3,988]

1 minute ago, vilmj said:

Thank you. They looked into Advance Parole but it is limited to certain scenarios and none apply. They are using a lawyer and it must be done via Consular Process. 

They looked in the wrong places…and whatever “ scenarios “ was told them , I don’t care to guess. 
Hopefully not involving a pricey I-601 A..and of course no ULP after 18 .
Why is the attorney not certain on the romance angle/ overlap ? 


 

[nastra30 2,287]

29 minutes ago, Demise said:

Not true. Travel on Advance Parole does not trigger a re-entry bar even if you have unlawful presence as per Matter of Arrabally (BIA, 2012). So the travel doesn't trigger a re-entry bar (which would require a waiver) and grants them a lawful parole in the understanding of INA 245(a) which is a prerequisite for AOS. Unlawful presence also isn't a factor for adjustment of status via marriage to a US Citizen as per INA 245(c)(2).

 

When you got DACA comes into play for cases when you cannot adjust in US after being in US illegally (basically anything aside marriage to USC, being the parent of a USC over 21, or being an unmarried child under 21 of USC, VAWA, SIJ, and a few special categories), which means that you can only do consular processing, then whether or not you will need a waiver depends on when you got DACA (under 18 + 180 days old - no, above - yes). This is for example how David Dobrick got his green card, he got DACA while under 18, then he did either EB-1 or EB-5, had no unlawful presence so he just left and did consular processing for it with no need for a waiver.

Does matter of Arrabally apply in all situations where intending immigrant is married to USC or only in situations where Adjustment of status is in play?

 

So let's say someone entered illegally, accrued 10 years unlawful presence after age 18+. Married a USC. Applied for I-130 and AP without adjusting. Travelled on AP. Will Arrabally apply in this situation?

Edited April 21, 2022 by nastra30

[Family 3,988]

11 minutes ago, nastra30 said:

So let's say someone entered illegally, accrued 10 years unlawful presence after age 18+. Married a USC. Applied for I-130 and AP without adjusting. Travelled on AP. Will Arrabally apply in this situation?

You realize no I-131 possible for I-130 .. without I-485 ….so not following the theoretical.
 

 

[Family 3,988]

But once you are Inspected/ Paroled , it IS a legal entry.