K1 Married Now Divorced without Green Card

[david_dawei]

I agree with Carl.. two threads here and we cannot get any answers toward understanding if the AOS petition was ever sent (although let's remember the petition is her responsibility; it comes from her and she signs it; A USC is simply the sponsor, and yes, ultimately the immigrant intent for her presence in the US).

 

I have to guess the AOS was never done since the OP mentions wanting to be her sponsor (unless he feels the divorce nullified a previous AOS filed sponsor, which it does not !).

 

If this is correct, the only issue is one of overstay (and ways around it).

 

In principle, if a person has violated a NIV status, they are not eligible to file for AOS in the US and must do so at a consulate in their own country. of course the catch is that once one leaves the US the overstay/illegal status is applied and barring can occur. (that's why some will recommend, as I did in the other thread, to not let her leave till you know the best advice from an immigration attorney)

 

But when one comes to the US [as a K1], gets married in 90 days and files AOS, however late, it appears that this overstay is overlooked up to a certain point... stories range up to two years.

 

1. If she files AOS (now) based on the K1 marriage, then her overstay will probably be overlooked, but the issue is the primary sponsor will probably not sponsor her... and they are divorced.

 

2. She can self-file the I-360 (without the original primary sponsors signature or support) based on abuse (physical or emotional), but a remarriage prior to approval/denial will cause this to result in a denial (if I read the instruction sheet correctly). This will require evidence presented, etc. This filing must occur within two years of the divorce.

 

3. If she got remarried, then she could attempt to file AOS under the new marriage. I personally don't think the overstay will be an issue as too many illegals do this and the overstay is 'forgiven'.. the problem will probably be the K1 marriage ended without ever filing AOS nor returning to her home country. (this is clearly where the attorney needs to advise you)

 

I would strongly warn the OP that one cannot underestimate the survival mode of someone caught in a difficult spot while in another country. If their desire is simply to be in this country, then you are not truly the object of her desire.

 

If she is truly the object of your desire, then nothing says the two of you must stay in the US.. If its true love it just might have to be in her country you live.. if she doesn't want to do that, then one has to realize the love of the two does not have the same objectives...

 

Please figure out her wants/desires... if she wants to simply go back home, she may flilp the clock on her overstay and barring issues.

 

Please get an attorney. Maybe an attorney can say if filing I-360 (even if denied and eventually results in her leaving the country) will still prevent a future baring.