How to proceed? (Possible divorce before AOS)

[Hiduejb 1]

I’m unsure exactly how to proceed. I arrived into the USA on an ESTA in 2024 to spend time with my partner. My allotted 90 days in the USA was up in June 2024 so I’ve been overstaying since then. A few days before my flight home my girlfriend and I got married so I cancelled the flight and since then I have been living with her and have been overstaying out of status. My intention was to spend those three months with her then fly home and investigate a CR1 visa. 
 

For the past 6-ish months I have been increasingly unhappy in our relationship. It’s to the point now where I’m spending hours every day thinking about an exit plan. We never ended up filing the AOS package, I’ve held off because of how I’ve been feeling within the marriage. Also my wife lost her job and we have been struggling a lot financially, she managed to find a new role in a different company. 
 

So I am very unsure how to proceed. We married in california. I wonder, if I were to tell her that I would like a divorce, would I file the divorce paperwork here in the USA or would I file it from my home country of the UK? If I filed from the UK would the UK divorce laws apply to me/us or the California laws because that’s where we got married and lived for over six months?

 

Since I’ve been overstaying would I need to do anything like apply for voluntary departure or could I simply book a flight and leave? I know I will face a three year ban. 
 

Since I’m not a US citizen would I be eligible to file for divorce? Because I don’t think it would be a good idea to go through with filing the AOS package then filing for divorce soon after receiving citizenship. 
 

What should I do? Stay with her in the USA while the divorce goes through or can I leave anytime? Or file it from the UK?

[Crazy Cat 42,755]

You are free to leave at any time.   There are no immigration checkpoints when departing.

[Yareth 118]

Your exit plan could be very simple: Book a ticket and leave. You don't need to do anything else to leave the country.

You can file for divorce in the US or in the UK, but it is probably easier to do while you are still in the US. You don't have to be a citizen, just a resident (which you are after a few months, even if you don't have your green card yet). It would be problematic if you'd have to be a citizen to file for divorce - a lot of immigrants would be 'locked in' their marriage. 

There will indeed be a three year ban if you leave. Your AOS will be considered abandoned as soon as you leave the country. Just so you know, if you file for AOS and it is accepted, you wouldn't receive citizenship but LPR (legal permanent residency).  

 

A big question is: Do you want to stay in the US/save your marriage?
If not, then the answer to your situation is fairly easy. 
If you do, then things are more complicated and you might have to fight a lot for your marriage to work out.  Your marriage is the basis of your presence in the US. 

[Hiduejb 1]

1 hour ago, Yareth said:

Your exit plan could be very simple: Book a ticket and leave. You don't need to do anything else to leave the country.

You can file for divorce in the US or in the UK, but it is probably easier to do while you are still in the US. You don't have to be a citizen, just a resident (which you are after a few months, even if you don't have your green card yet). It would be problematic if you'd have to be a citizen to file for divorce - a lot of immigrants would be 'locked in' their marriage. 

There will indeed be a three year ban if you leave. Your AOS will be considered abandoned as soon as you leave the country. Just so you know, if you file for AOS and it is accepted, you wouldn't receive citizenship but LPR (legal permanent residency).  

 

A big question is: Do you want to stay in the US/save your marriage?
If not, then the answer to your situation is fairly easy. 
If you do, then things are more complicated and you might have to fight a lot for your marriage to work out.  Your marriage is the basis of your presence in the US. 

Thank you this is very helpful. I wonder if I went back to the UK then filed for divorce from there would the UK divorce laws apply or the US? 

[Hiduejb 1]

1 hour ago, Yareth said:

Your exit plan could be very simple: Book a ticket and leave. You don't need to do anything else to leave the country.

You can file for divorce in the US or in the UK, but it is probably easier to do while you are still in the US. You don't have to be a citizen, just a resident (which you are after a few months, even if you don't have your green card yet). It would be problematic if you'd have to be a citizen to file for divorce - a lot of immigrants would be 'locked in' their marriage. 

There will indeed be a three year ban if you leave. Your AOS will be considered abandoned as soon as you leave the country. Just so you know, if you file for AOS and it is accepted, you wouldn't receive citizenship but LPR (legal permanent residency).  

 

A big question is: Do you want to stay in the US/save your marriage?
If not, then the answer to your situation is fairly easy. 
If you do, then things are more complicated and you might have to fight a lot for your marriage to work out.  Your marriage is the basis of your presence in the US. 

Also I’m curious to know if I went ahead with filing for AOS despite having doubts about my marriage, then we ended up getting divorced very soon after I received LPR could I face legal ramifications? Since it might look like a marriage for green card type situation? This is why I’ve been holding off filing for AOS even though the package is almost completely done

[Yareth 118]

I am not a lawyer, so I cannot say anything definitively about the legality of your situation.
It is not uncommon for marriages to fall apart after AOS and there are numerous cases in which green card renewal has been accepted after divorce. USCIS is aware that divorce does not always equal fraud and that life happens. It does require the goodwill of the US citizen (as they need to attest to the fact that the entire relationship was legit) and a ton of evidence to support the claim that the marriage was in good faith and ended naturally (financial commitments, merging of lives etc). Divorcing immediately after you received your green card (and before lifting the conditions on said green card) will raise a lot of red flags. 

Now, to reiterate, the only reason that you are eligible to the benefit of immigrating in the US is through your legitimate marriage. The only way to stay is to prove that you're well rooted in US society (which is WAY too early at the moment) and that the marriage ended outside of fraudulent motives. This is a difficult thing to prove. Any strategic planning of your relationship to keep the benefit of immigration will be seen as fraudulent. That's why I gave the two options:

-Leave
-Fight for your marriage

That's all you've got. 

[SalishSea 18,286]

8 hours ago, Hiduejb said:

Also I’m curious to know if I went ahead with filing for AOS despite having doubts about my marriage, then we ended up getting divorced very soon after I received LPR could I face legal ramifications? Since it might look like a marriage for green card type situation? This is why I’ve been holding off filing for AOS even though the package is almost completely done

At this point, it’s not a bonafide marriage, is it?   So what do you think?

[Hiduejb 1]

5 minutes ago, SalishSea said:

At this point, it’s not a bonafide marriage, is it?   So what do you think?

Well, this is exactly why I haven’t filed the AOS package. 

7 hours ago, Yareth said:

I am not a lawyer, so I cannot say anything definitively about the legality of your situation.
It is not uncommon for marriages to fall apart after AOS and there are numerous cases in which green card renewal has been accepted after divorce. USCIS is aware that divorce does not always equal fraud and that life happens. It does require the goodwill of the US citizen (as they need to attest to the fact that the entire relationship was legit) and a ton of evidence to support the claim that the marriage was in good faith and ended naturally (financial commitments, merging of lives etc). Divorcing immediately after you received your green card (and before lifting the conditions on said green card) will raise a lot of red flags. 

Now, to reiterate, the only reason that you are eligible to the benefit of immigrating in the US is through your legitimate marriage. The only way to stay is to prove that you're well rooted in US society (which is WAY too early at the moment) and that the marriage ended outside of fraudulent motives. This is a difficult thing to prove. Any strategic planning of your relationship to keep the benefit of immigration will be seen as fraudulent. That's why I gave the two options:

-Leave
-Fight for your marriage

That's all you've got. 

Thank you very much for your help

[Ontarkie 14,664]

~~Moved to Effects of Major Family Changes, form AOS from Work, Student and Tourist Visas - As similar topics are discussed here.~~

[Ontarkie 14,664]

 So time to buck up and tell your wife and get on that plane. You can divorce in the UK and it will be recognized even in California. Do your self a favour and go home. You've already given yourself a 3 yr ban don't make it 10yrs.