Need Guidance

[Richard & Li]

I've been away for a long while. For those who remember me: My wife, son, & I are well and our marriage is doing fine.

 

The problem is with someone else. It's looking like their marriage is ending after only about a week. There is no physical abuse (a lot of yelling and slamming doors though). But, no one is in danger. He (the American) is out of patience and is refusing to file any more paperwork or spend any more money and is filing for annulment. She and her daughter (the Chinese) are probably going to be on their own soon without SSN, green card application, or American ID. They have family in America who will take them in and support them as long as necessary. So, they will never be 'on the street'. But, they are looking to me for advice in regard to American law and: I don't know!

 

What are their options in regard to USCIS? Should she try to find another man and, if she does, how would they proceed legally?

 

Please keep in mind when replying: Returning to China would be extremely difficult (nearly an impossible situation) for them. It's just not a realistic option (and probably won't happen in any event).

 

Thanks in advance for your advice and/or direction to resources where I can read about this topic.

[warpedbored]

If they married it may be possible for her to adjust status on her own based on entering the marriage in good faith. She should talk to a lawyer.

[dnoblett]

What visa type?

 

Sounds like a K1/K2. Legal advice needed.

 

If an annulment it would be like marriage never happened. If she marries someone else she would not be able to adjust status based on her visa type. K1 requires AOS based on marriage to the K1 petitioner, and K2 requires this too. Also would not be allowed AOS based on filing of an I-130 and marriage to someone else, the I-130 would require return to home country to interview for a spousal visa.

 

Any time after I-94 expires will count as out of status time which if goes longer than 6 months can also cause problems.

 

As Carl said may be able on good faith, but more than likely will need to prove abuse or something.

 

Typically the "Good Faith" thing has to do with removal of conditions from a two year conditional green-card, they got married and adjusted status, only to find a year or so after marriage that things are not working out and divorced, the CR-Greencard holder could remove the conditions on the grounds that the marriage was in good faith.

Edited October 4, 2010 by dnoblett (see edit history)

[Richard & Li]

Yes, it is a K1/K2.

 

I think it's unlikely that he will be able to get an annulment; I believe the conditions necessary for that cannot be proven. This quote is from a legal service in their state: "The principal grounds for annulment are bigamy, marrying before the legal age of marriage, and the mental incapacity of one or both persons at the time of their marriage, or that the consent of either spouse to the marriage was obtained by fraud or force."

 

So, let's think in terms of a normal divorce before the green card was applied for.

 

Thanks again for your help.

[dnoblett]

There is not much grounds to adjust status on in this case.

 

I-360 and I-864W is the only option.

 

Here is what I-360 has to say.

 

http://i949.photobucket.com/albums/ad334/dnoblett/Immigration%20Stuff/I-360BatteredWife.png

 

http://www.uscis.gov.../i-360instr.pdf

[Randy W]

Talk to a lawyer

[Ryan H]

I think you are right that there will not be any annulment as the definitions for that are specific and you have researched what they are. As for what's next, the woman needs to talk to a lawyer.

[warpedbored]

Being dumped a week after getting married could qualify as mental abuse. Since she has family here willing to take her in and she has no means to get back to China or income once she got there, that could be extreme hardship. She needs a lawyer.

[chilton747]

Let's not forget the other side. The woman could be play-acting as part of a well thought out plan.

 

She needs a lawyer (and probably knows one).

[dnoblett]

Let's not forget the other side. The woman could be play-acting as part of a well thought out plan.

 

She needs a lawyer (and probably knows one).

Yes, I know of quite a few that play this game to get a child into the USA for education, though the smart play would have been to not blow up like that, and behave until well after getting the green-cards.

[b.c]

Being dumped a week after getting married could qualify as mental abuse. Since she has family here willing to take her in and she has no means to get back to China or income once she got there, that could be extreme hardship. She needs a lawyer.

 

The first week with my wife could have been considered mental abuse too. I agree with Charles, there might be another side.

[warpedbored]

I always consider there is another side but I try to give advice based on the information I am given. The other day it was the American spouse and I based my reply on what he said. Today it is about the Chinese woman and I am basing my reply on her situation. In my experience though, it has been the Chinese spouse who is in the more dire circumstances the most often.

[Richard & Li]

Thanks all for your replies. I concur: I will advise her family to seek out an attorney who deals with immigration issues.

 

I haven't tried to assess blame or intent in this situation. My belief is that it was like mixing oil & water ¨C I think they are both good people who just can't live together. Neither of them is going to benefit from this, on the contrary; both will be emotionally scarred (probably, her daughter too) and both will lose assets (him: mostly monetary, her; the stability that she needs to provide for her daughter).

 

The reason I'm more interested in dealing with her situation in this forum is; she will need to deal with the USCIS from a weak position and I've been asked for advice (which I need guidance with). It's as simple as that.