Divorce while AOS pending (VAWA?)

[martha783 12]

This is for a friend.

She met and married her U.S. citizen husband within a month while in the U.S. on a valid B1 and filed AOS. She left him 6 months later for domestic abuse (no convictions or legal record). She does not even have her EAD yet, and I-485 interview is probably another 6 months out. She's now pregnant and filing for divorce. She is looking into filling VAWA. I'm wondering if give the very limited relationship history and ability to prove there was no immigration fraud (her ex will not help her) that VAWA may not be approved. Any experience with this? I felt like they had a tenuous position for the interview PRIOR to the divorce given the quick marriage, but I have no idea what the burden of proof is for the legitimacy of the relationship given they are having a child together but will no longer be married.

 

(sorry if this isn't the right place for VAWA question - I couldn't tell if every single VAWA post was supposed to be on the update thread)

[carmel34 3,621]

8 hours ago, martha783 said:

She left him 6 months later for domestic abuse (no convictions or legal record).

VAWA cases are more likely to be approved if there is documentation regarding the domestic abuse (police reports), as false claims cannot be verified.  Does she have documented evidence?

[Daphne . 1,852]

How long had she known the US Citizen before marrying them within a month of entering the US on her tourist visa? 

 

Some people use the situation you described as a strategy to get a green card. They marry (any) US Citizen, and file for divorce (and VAWA because that would be the only way to have a chance for a green card), add a USC baby to the mix because they think that this strengthens their case. The ultimate goal was never to be with their spouse, but to have a way to move to the US. Not saying that your friend did this, just saying that USCIS sees plenty of these cases. Not too long ago I saw a post about VAWA denials, and browsing through those, the (lack of evidence of) legitimacy of the marriage and totality of circumstances were cause for a denial. VAWA is by no means a guarantee for a green card. 

 

How long has you friend been in the US? It doesn't look like it has been very long yet, since everything is still pending. Wouldn't she have more to fall back on if she goes back home? 

[martha783 12]

She knew him less than a month before they married. While her intentions were sincere, and the abuse is real, the records are only text messages and witnesses and no police involvement since he successfully took her phone when she tried to call.  She had only been in the U.S. a few months before they met online, and the hurry was “justified” by the need to AOS before her stay expired. I think it looks suspect and am not sure how she proves it was bona fide without his help. I wasn’t sure if a child together is very helpful when she only lived with him 6 months. 

 

 I have advised her to return to her home country (for support and sole custody) but others are advising the VAWA route. I’m not very familiar with VAWA so I put is appreciated. 

[Boiler 45,466]

Obviously not all VAWA claims succeed but my impression that most do, some need help and this seems one of those. 

 

I assume she has a divorce lawyer, one thing about returning home is whether the Father is agreeable, presumably she wants to take the Baby with her?

[martha783 12]

Baby isn’t born yet so she has full rights to leave. Once baby is born she’ll be stuck and potentially without legal immigration status. Not sure if inability to leave with her child impacts VAWA claim. 

[Boiler 45,466]

1 minute ago, martha783 said:

Baby isn’t born yet so she has full rights to leave. Once baby is born she’ll be stuck and potentially without legal immigration status. Not sure if inability to leave with her child impacts VAWA claim. 

I should have been clearer about that.

 

There is a time limit when she can not file and not sure how along she is. The child assuming born in the US does not impact her VAWA situation, certainly complicates matters.

[martha783 12]

Are you referring to the time limit after divorce or another one I don’t know about? She’s 26 weeks pregnant and left him two months ago so she is definitely under pressure to decide quickly whether to leave or stay. 

[Boiler 45,466]

5 minutes ago, martha783 said:

Are you referring to the time limit after divorce or another one I don’t know about? She’s 26 weeks pregnant and left him two months ago so she is definitely under pressure to decide quickly whether to leave or stay. 

Agree I forgot the time limit for Airlines and it could vary but she must be getting close. She does not need to be in the US to Divorce.

[Ontarkie 14,218]

I'm am thinking about her protection and her alone here. If she leaves now she can leave without the father's consent. If she stays she may or may not get VAWA we don't know her evidence, but one thing we do know is she may never be allowed to take her child back to her home country unless the father or a court gives consent which is really rare. 

She can also if she wants to file VAWA back in her home country if she is fearful of her soon to be ex. 

 

[martha783 12]

Yes, the ability to claim sole custody is exactly why I advised her (from a domestic violence perspective) to just leave.

 

I did not know she could leave with AOS pending and file VAWA and divorce from a distance which is what I'm understanding now? That may tip her in favor of leaving since I know she really doesn't want to give up potential residency/citizenship for her child, but I'm worried she's going to end up stuck with no legal status as a single mom while he fights her for custody as he has threatened to do for vengeance. 

[martha783 12]

If she leaves, her AOS would be voided but her I-130 would still be pending or are they thrown out together, and she would be starting with a VAWA from 0 from outside the country? I'm trying to understand what status she would have to claim VAWA if she wasn't even here.

[Boiler 45,466]

I am going to assume the child will be a USC through the father, so there is a process for acknowledging that.

 

Plus the child will inevitably be a factor in divorce proceedings.

 

Perhaps she thinks she will have control, maybe mention international child abduction.

 

 

Edited July 3, 2023 by Boiler

[Boiler 45,466]

4 minutes ago, martha783 said:

If she leaves, her AOS would be voided but her I-130 would still be pending or are they thrown out together, and she would be starting with a VAWA from 0 from outside the country? I'm trying to understand what status she would have to claim VAWA if she wasn't even here.

The I 130 is about substantiating the marital relationship, so if not a dead issue now will soon be.

 

I know you can do VAWA through a Consulate, does not seem common, I assume it is just like any other Consulate processing. Shw would still need to work on her case.

 

 

[martha783 12]

To complicate matters further, she is in one of the states that will not finalize divorce while you're pregnant and that assume 50/50 custody and married spouse automatically is father.

 

BUT I think if she left, her abuser would give up, and she could probably file VAWA and come back if approved without him messing with her for custody as long as she doesn't ask for child support.