help plz

[BiDoo_jamie 0]

hi everyone , i am now in usa i came with k1 visa but now i am married to my wife and we sent our papers for work permission and green card but she don't want to be married anymore to me she wants divorce , we have a son 4 months old he is american so my question am i still able to get the green card cuz i am a father of american son and if yes what is the steps , thank u

[Samoray 165]

That's a dilemma, i hope someone can give you advice on that one

[RICARDO4EVA2 194]

havg a child who was born in america inst enough proof to say in America .. for that basis alone lawyers would have to be involved to get a case.

Edited November 11, 2010 by RICARDO4EVA2

[TracyTN 237]

As the previous poster said - being a father to a child born in the US gives you no rights on it's own. You''ll have to prove that you entered the marriage in good faith and not for immigration benefit. If your soon to be ex wife will cooperate in that endeavor, then you're much better off. As you have already filed the paperwork, this should only come into play if you are interviewed for your green card. Hopefully your wife would attend the interview with you explaining that the marriage was genuine and genuinely fell apart.

Moving thread to 'Effects of Family changes on immigration forum.

[RICARDO4EVA2 194]

IF she doesnt want to be married there isnt MUCH of anything that you're able to do than to get a divorce if the marrige will not work and if seeking marriage counseling will not fix the issue. You can see if you're able to get a waiver based on good faith but if you havent been married for 6 month+ that could be a problem.

[RICARDO4EVA2 194]

As the previous poster said - being a father to a child born in the US gives you no rights on it's own. You''ll have to prove that you entered the marriage in good faith and not for immigration benefit. If your soon to be ex wife will cooperate in that endeavor, then you're much better off. As you have already filed the paperwork, this should only come into play if you are interviewed for your green card. Hopefully your wife would attend the interview with you explaining that the marriage was genuine and genuinely fell apart.

Moving thread to 'Effects of Family changes on immigration forum.

I see youre in nashville,TN.. Sweet .. TomD is in Nashville as well.. Great person...!

Hope the wife will attend the interview.. that's a different story .. something you'll have to talk to her about. .. Good things.. you can maintain a relationship with your child and in the future you would be qualified for the immigration benifit if nothiing else happens before then.

Edited November 11, 2010 by RICARDO4EVA2

[NigeriaorBust 4,087]

A USc child can't help your immigration status until they are an adult so you have to wait a few years. If AOS hasn't been approved there is not much you can do about your status, if it is approved then there isnt' much she can do about removing your status. So is your AOS approved ?

[JimVaPhuong 4,863]

Some people in this thread probably assumed you already had a green card. It's pretty clear from reading your post that this isn't the case, and you probably wouldn't be asking these questions if it were. You've only sent your paperwork for the green card and EAD, right?

Ok, the comments about proving you married in 'good faith' will not apply to you. That option is only available for someone who has already gotten a conditional green card, and needs to apply to remove conditions from their green card after a divorce.

If your wife files for the divorce before your green card is approved then you are no longer eligible for a green card. It's that simple. You could get lucky, and USCIS might approve your green card without an interview, but you'll eventually have to file to remove conditions on that green card. When you do, they'll find out when the divorce was filed, and they'll revoke your green card. If you end up getting an AOS interview then you won't get a green card at all.

The only way to get a green card out of this marriage is if your wife abused you, in which case you'd need to prove that she abused you, prove that you entered the marriage in good faith, and prove that the abuse was a primary factor in your divorce. That last requirement would be darn tough if your wife files for the divorce.

Your son does not currently provide any path whatever to legal status. Once he's 21 years old then he can petition for you as an immediate relative. Until then, he can't help you.

The bottom line here is that your future status in the US hinges entirely on your marriage. If your wife isn't willing to continue with the marriage, then you can't continue to stay in the US.

[TracyTN 237]

I actually knew he did not have his green card yet. But I thought if you applied on the basis a K1, and that marriage has broken down before you receive the green card, you would have to prove you did not enter into the marriage for immigration benefit. That is - IF the OP is interviewed for the green card (dunno how common/uncommon that is anymore).

[JimVaPhuong 4,863]

I actually knew he did not have his green card yet. But I thought if you applied on the basis a K1, and that marriage has broken down before you receive the green card, you would have to prove you did not enter into the marriage for immigration benefit. That is - IF the OP is interviewed for the green card (dunno how common/uncommon that is anymore).

USCIS policy is that if a divorce has been filed, or a legal separation which will lead to a divorce, then the AOS cannot be approved. There was a case in the 9th circuit court of appeals where a K1 was able to successfully adjust status in this situation, but they had waited nearly two years for the AOS to be approved before they divorced. Their lawyer's argument was that if USCIS had adjudicated the AOS in a timely manner then it would have been approved long before the divorce was filed, and the alien would have been allowed to self-petition for removal of conditions. The 9th circuit court agreed, but this was not considered a precedent setting case, and USCIS policy didn't change as a result. If the OP lives in the 9th circuit court district, and would like to pin his hopes on this prior case, then he'd better pray that USCIS takes a very long time to adjudicate the AOS petition.

Anyway, USCIS policy regarding this is laid out in section 23.5 of the AFM:

"If the petition is based on a marital relationship, question the party or parties sufficiently to satisfy yourself that the relationship continues to exist. If it has been terminated through annulment, divorce, or death, revoke the petition."

The underlying basis for the adjustment must exist both at the time the AOS petition is submitted and the time it is approved. There are some situations where the basis can be converted to another basis if circumstances have changed. However, there is no basis for adjustment of status as the divorced spouse of a US citizen, so no conversion would be possible.

Like I said in my previous post, it's possible the OP won't have an AOS interview. In that case, if USCIS doesn't discover the divorce then the green card would probably be approved. However, at some point he's going to have to self-petition to remove conditions. When he does, USCIS will discover that the divorce was filed prior to him receiving his green card. At that point, USCIS will determine he was never eligible for the green card, and his green card will be revoked. His only hope at this point is that he doesn't get selected for an interview, and his wife waits until after his green card is approved to file for the divorce.

[TracyTN 237]

Ah ok - thanks for the information. I didn't realize - but it does make sense - that the 'right' to the green card would be revoked if they divorced before it was approved. I guess the OP needs to have a conversation with his wife and see if she is willing to wait out the green card approval before they divorce.