A Hypothetical Situation

[rogerinca]

Hypothetical questions: After a conversation I had today with an aquaintance. I have no knowledge in this regard on this subject.

 

Overview: A USC brings his SO to USA on K-1. USC marries SO within the required 90 day period. However, USC/SO do not keep the (pre-AOS) fingerprinting appointment, misses it. Then the USC and SO, do not attend/show up at the scheduled AOS meeting. It is now nearly six months since the SO entered the USA POE, upon her arrival from the PRC. The USC, is not sure if the marriage will survive the year, and 'appears' not to be enthusiastic about pursuing the AOS and he does not care if the SO leaves the home for good.

 

Q: Where do they (each) stand at this juncture with respect to [status], in the eye of the USCIS ??

 

Q: At what point in time, does the SO become in violation of the terms of her original K-1 visa to the USA ?? Is the USC subject to any censure by the USCIS at this juncture, if the SO (now his wife) is still living under his roof ??

 

Any insights from those of you who know the AOS part of the process well ??

 

And yes, this may have a nexus to another thread here within this forum.

[Randy W]

She satisfied the terms of her K-1 by marrying (in good faith) within 90 days.

 

She needs a good immigration lawyer, but can probably adjust status (it's been done).

 

The USC is off the hook, provided he didn't sign the I-864, except as provided by the divorce decree. Any future applications may be affected.

[jim_julian]

Roger ... you have issues??

[warpedbored]

From what I've been able to dig up from the USCIS in order for her to file on her own the divorce must be final and she must have entered the marriage in good faith.

 

I have a similar question though. If a K-1 enters the country and the petitioner decides 60 days he wants out before the marriage and beats up his fiance and kicks her out can she file to adjust status on her own due to abuse provisions? Anyone have a link to the pertinent information on the USCIS website? I can't seem to find it.

[Jeikun]

Not sure, but I do know that when I split up with my ex-wife prior to AOS and she tried to file on her own (WITH a lawyer) they told her to get lost, and sent her a deportation letter. But the VO did basically say so as to help her for future attempts at entry that she would simply put it as a missed appointment.

 

There is a means for her to remove conditions on her own, but no easy way to get the conditional greencard on her own to my knowledge.

 

And this hypothetical person will soon get a letter stating the application has been deemed as abandoned (not denied) due to the appointment not being kept. It may include some info regarding how to get it back on track if it was an error, and will state that the SO will soon receive notice of a deportation hearing. (This is what I got in the mail, I wish I said I had kept it so I could show you, but I just laughed and threw it away.)

 

In the case of abuse perhaps a good lawyer could make a case at the court hearing for her... but otherwise married or not she is likely screwed.

[rogerinca]

Roger ... you have issues??

 

 

Oh God no, Jim !!!!

 

This ties into a previous thread in the members only section of the forum !!! This is for an aquaintance/previous member here.

 

I am now with the last woman, in my life......contrary to what some others my opine !! I caught the #3 wire, this time Jim !!

[SirLancelot]

I have a similar question though. If a K-1 enters the country and the petitioner decides 60 days he wants out before the marriage and beats up his fiance and kicks her out can she file to adjust status on her own due to abuse provisions? Anyone have a link to the pertinent information on the USCIS website? I can't seem to find it.

 

Carl, the situation you describe is different from Roger's "acquaintance" in that they are not even married. I think it'll be extremely difficult for this person to do anything besides leave the country. Even if the man is arrested for physically beating up this woman, I don't think she can file for anything as they never even got married. At the most fundamental level, doesn't she need to at least enter into the marriage in good faith before she can try any sort of appeal?

 

 

Randy, there has to be more consequences than what you've paint:

 

She satisfied the terms of her K-1 by marrying (in good faith) within 90 days.

 

She needs a good immigration lawyer, but can probably adjust status (it's been done).

 

The USC is off the hook, provided he didn't sign the I-864, except as provided by the divorce decree. Any future applications may be affected.

 

If nothing consequential happens to either parties, then I'm positively certain that many people would go this route simply to enter the US and stay.

 

Wouldn't Roger's acquaintance have filed a I-864 to get as far as an AOS appointment? I'd imagine no interview would have been scheduled without submission of a signed I-864.

[rogerinca]

 

If nothing consequential happens to either parties, then I'm positively certain that many people would go this route simply to enter the US and stay.

 

Wouldn't Roger's acquaintance have filed a I-864 to get as far as an AOS appointment? I'd imagine no interview would have been scheduled without submission of a signed I-864.

 

 

Lance, the individual is a little vague as to what he signed or did not sign; however, I agree with you that he must have signed this, to get the interview date (this Monday) !!

 

You also make a very good point with respect to the issue of consequences vs. none, or it would open the preverbal flood gates !!??

[SirLancelot]

Roger, as far as your able to ascertain, what is the intention of the wife? Does she want to stay in the US or go home? If she wants to go home, then it's just a straight divorce as Randy suggests.

 

It's only if she wants to stay and fight to stay in the US that problems arise for everyone involved.

[rogerinca]

Roger, as far as your able to ascertain, what is the intention of the wife? Does she want to stay in the US or go home? If she wants to go home, then it's just a straight divorce as Randy suggests.

 

It's only if she wants to stay and fight to stay in the US that problems arise for everyone involved.

 

 

I am not close enough to the situation on a daily bases to make an eduacted call on this one; however, my instinct is that if she wanted to go back, she would have done so by now. I think she will want to stay (face with friends and family back home) but not sure if will want to fight, or just bet on the odds and drop out of sight ??

[Randy W]

 

 

Carl, the situation you describe is different from Roger's "acquaintance" in that they are not even married. I think it'll be extremely difficult for this person to do anything besides leave the country. Even if the man is arrested for physically beating up this woman, I don't think she can file for anything as they never even got married. At the most fundamental level, doesn't she need to at least enter into the marriage in good faith before she can try any sort of appeal?

 

 

Randy, there has to be more consequences than what you've paint:

 

She satisfied the terms of her K-1 by marrying (in good faith) within 90 days.

 

She needs a good immigration lawyer, but can probably adjust status (it's been done).

 

The USC is off the hook, provided he didn't sign the I-864, except as provided by the divorce decree. Any future applications may be affected.

 

If nothing consequential happens to either parties, then I'm positively certain that many people would go this route simply to enter the US and stay.

 

Wouldn't Roger's acquaintance have filed a I-864 to get as far as an AOS appointment? I'd imagine no interview would have been scheduled without submission of a signed I-864.

 

 

The situation Carl describes IS different and may be covered by abuse provisions. He is looking for them to determine that.

 

We have had more than a few USC's report separating from their spouses between the marriage and the AOS interview I don't think any have reported any adverse circumstances (beyond the split-up, and any effects on subsequent applications).

 

The I-864 is not effective until the green card is awarded. Whether she can use his already signed I-864 is a question for a lawyer (both parties have an interest here).

 

The wife needs to talk to a lawyer. Immigration court deals with these things all the time. The absolute worst outcome, if she deals with it appropriately, would be voluntary deportation.

 

In immigration court, the USCIS is simply a party to the proceedings. The court tells them what to do. The only thing the USCIS has any control over is the FBI background check - that is, the court can't order adjudication before the background check is complete.

Edited August 10, 2007 by Randy W (see edit history)

[C4Racer]

From what I've been able to dig up from the USCIS in order for her to file on her own the divorce must be final and she must have entered the marriage in good faith.

 

I have a similar question though. If a K-1 enters the country and the petitioner decides 60 days he wants out before the marriage and beats up his fiance and kicks her out can she file to adjust status on her own due to abuse provisions? Anyone have a link to the pertinent information on the USCIS website? I can't seem to find it.

 

Carl,

 

I've looked at the instructions and they are quite clear.

 

No marriage. No eligibilty for adjustment, period.

 

Persons Who Are Not Eligible to Adjust Status.

.

You were admitted as a K-1 fianc¨¦(e), but did not marry

the U.S. citizen who filed the petition for you, or you were

admitted as the K-2 child of a fianc¨¦(e) and your parent

did not marry the United States citizen who filed the

petition;

Adjustment through abuse only pertains to those who were married and had to leave the marriage because of excessive abuse.

 

Basically, as Lisa stated last night. Her only legal option is to return to China and find another American man to marry.

Edited August 10, 2007 by C4Racer (see edit history)

[warpedbored]

That's what I thought. The woman is at Freds now and I think she would go underground rather than return. Sad situation.

[david_dawei]

Roger:

Based on what little I hear, I'd be surprised if she can process through adjustment alone.

 

What your friend needs to do is:

1) "withdraw" his I-864; go down to the local office and fill out the appropriate form and it can be done on the spot... this will release him from any possible obligations.

2) As well, he can submit a letter explaining the relationship and problems that occurred for him to "withdraw".

 

The reason for the letter: this is his only chance to give "his side"... if she tries to file later, obviously he won't be there for any interview and so they can only go by what "she says".

 

Carl:

She needs to get an immigration attorney.. my guy says that one will come up with something, even "asylum" help (ie: having been physically beaten in the US, she fears for her life going back to china, yada, yada, yada...)