Hello everyone, I am new to this board but I have a few questions and am hoping that someone might be able to help me. I am involved with a woman that came to the United States on a K1 with another man. After almost one year, the relationship fell to pieces and they are currently separated. As of now, we are involved in a realtionship and most ties are cut with her husband. She informed me that she now wants a divorce with him. If she was to divorce him and then marry me, how would that affect the situation when she goes to file the I-751 waiver?? Her first marriage was bonafied and she has all the necessary paperwork to prove that it was not a sham marriage. I guess the main question that I have is what will happen if she divorces him and then goes about the process with the waiver? Additionally, if me and her had a child together in the near future, would that affect the decision of the INS? Any help would be greatly appreciated as we are both very confused and she is obviously scared of being deported. Thanks in advance to anyone that would be willing to help me.

chris

This is only according to my best knoweledge.
If she came to US on K1 visa she can only remove condition with the USC that file petition for her in the first place. If she gets a divorce she will not be able to remove condition. I do not think you guys having a child will change it.

What if she were to join the Air Force prior to the 2 year GC expiring??

I thought only USC can apply to military or government jobs. If she came here with K1-visa, she needs to go back to her country before marry with you. I think it would be complicated if she applieds to I-751 waiver and marrieds you after divorce gets final. I think it will be simple for her to finalize divorce and withdraw I-130, 485, and go back to her country to reapply K-1 and come back.

As far as I know, you don't need to be a USC to join the military. I was in the Army for 4 years and we had lots of people that weren't citizens. I understand what you are saying about having her return to her country but it just seems so much easier to have her stay here. I don't know. I guess we are both really confused right now.

quote:

Originally posted by ChrisP7683:
Hello everyone, I am new to this board but I have a few questions and am hoping that someone might be able to help me. I am involved with a woman that came to the United States on a K1 with another man. After almost one year, the relationship fell to pieces and they are currently separated. As of now, we are involved in a realtionship and most ties are cut with her husband. She informed me that she now wants a divorce with him. If she was to divorce him and then marry me, how would that affect the situation when she goes to file the I-751 waiver?? Her first marriage was bonafied and she has all the necessary paperwork to prove that it was not a sham marriage. I guess the main question that I have is what will happen if she divorces him and then goes about the process with the waiver? Additionally, if me and her had a child together in the near future, would that affect the decision of the INS? Any help would be greatly appreciated as we are both very confused and she is obviously scared of being deported. Thanks in advance to anyone that would be willing to help me.

chris

Removing conditions follows receipt of conditional permanent residency. Did she successfully adjust status with the prior husband?

I am not totally sure what you mean by adjusting status? She is still currently married to him. Based on my situation, what would you think would be the best course of action for both of us??

quote:

Originally posted by ChrisP7683:
I am not totally sure what you mean by adjusting status? She is still currently married to him. Based on my situation, what would you think would be the best course of action for both of us??

I-751 means she is now a conditional resident, correct? Has a green card (she adjusted status from K1 to permanent resident)?

She currently holds a 2 year green card which will expire in October of 2008, so from what I understand, she will need to petition to get the conditions removed 90 days prior to the expiration of her 2 year GC and at that time she will be applying for the 10 year green card

I think she can apply for I-751 waiver after divorce and try adjust her status based on the first marriage. you can marry her after her divorce. However, she will have to go back to her country to apply for visa if her I-751 waiver gets denied. If her I-751 gets denied, you cannot adjust her status in the U.S because she came with K-1 under her first husband.

Thank you for your help so far. Would there be any issue if the I751 was denied and she was removed and then filed the K1 again?

quote:

Originally posted by ChrisP7683:
She currently holds a 2 year green card which will expire in October of 2008, so from what I understand, she will need to petition to get the conditions removed 90 days prior to the expiration of her 2 year GC and at that time she will be applying for the 10 year green card

She got her conditional green card on Oct 2006. That means she got separated with her sponsoring husband only after 1-3 months since obtaining her green card. This is a typical situation for which USCIS suspects of a marriage fraud. And marriage fraud carries a penalty of permamanent bar to US.

You'd better make sure she has a darn good case for her I-751 waver. Or else, starting with a new visa is a better alternative.

Really, I am so confused right now. I honestly have no idea would our best course of action would be...

quote:

Originally posted by ChrisP7683:
Thank you for your help so far. Would there be any issue if the I751 was denied and she was removed and then filed the K1 again?

She has a conditional green card already so any requirement of the K-1 visa is moot. She can file to remove conditions right now if she has a divorce decree. She does not need to wait until the 90 day mark.

If she is denied for reasons other than a suspect marriage, she would be effectively without status and unlawfully present in the USA. Failure to provide sufficient information or to file a waiver timely is not the same as a finding of fraud. Dependent upon how long she is out of status, she could incur a bar to admission in the future, so leaving the country would be ill-advised at that point until she were to consult with an immigration attorney.

As far as my information is concerned, she could gain permanent residency once more through a new marriage to another USC. She would not need to leave the country, although someone mentioned that in a post above. The terms of the K-1 visa pertain only to adjustment of status, and with a conditional green card, she has already cleared that hurdle.

Naturally, if the waiver form I-751 to remove conditions from her residency were to be denied on the basis that USCIS suspects fraudulent intent in the first marriage, chances are any subsequent marriage would have great difficulty overcoming the consequences.

Thank you for you extensive response. One other lawyer told me that she should get the divorce immediately, file the I751 waiver, and if the waiver is granted, we can then marry. However, he also said that if the waiver is denied and she is put into removal proceedings, that we could still get married and the removal proceedings would be terminated and she could adjust status on the basis of a marriage to me. Do you know anything about this??

quote:

Originally posted by ChrisP7683:
Thank you for you extensive response. One other lawyer told me that she should get the divorce immediately, file the I751 waiver, and if the waiver is granted, we can then marry. However, he also said that if the waiver is denied and she is put into removal proceedings, that we could still get married and the removal proceedings would be terminated and she could adjust status on the basis of a marriage to me. Do you know anything about this??

As far as I know, there is no immigration-related issue that would restrict marriage to you now that her divorce is final. She would still be petitioning to remove conditions on her residency by way of the former marriage to a US citizen by filing the waiver of the joint filing requirement for form I-751 (commonly referred to as a waiver to remove conditions).

Should that be denied for some reason, I tend to disagree with the information you've received from the attorney. My understanding is that the issue of remarriage becomes tricky if a remarriage occurs while an alien is IN removal proceedings as Section 204 of the INA suggests that this may be a step taken to evade the consequences of removal and can be perceived as a marriage of convenience. The alien would be subject to his or her proofs that the second marriage is for bona fide reasons.

Let's look at all the facts.

1. she separates her husband only after a few days after obtaining her green card.
#1 is a strong circumstantial evidence for USCIS to deny the I-751 waver unless trumped by documents with strong evidences.


2. If waver is denied, she marries you while on removal proceedings.
Uscis can suspect that the fact #2 indicates she is marrying you to avoid the removal order, which is a basis for denial for further adjustment of stauts.

I remember a person who posted about his case that was similar some time ago. His case was denied based on above 1 and 2 facts and was looking for advices on how to avoid the deportation. I am not sure how old the posts were. You can use the search functions.

I recommend to explore further options to avoid the pitfalls. Your case sounds potentially suspicious to USCIS.

Would bona fide reasons include the hundreds of pictures in different states that we have traveled together to, pictures in the house of my mother, holiday cards and wedding invitations with both our names on them, so on and so forth? A cellphone bill that has both names, etc???

Additionally, as far as the validity of her first marriage, she has known her husband for over five years now, he is a USC and traveled back and forth from the US to his and her native country in the early stages of thier relationship. They have a apartment together, insurance, and life insurance, 2 credit cards, and a bank account together. Photos at parties and such. The engagement ring that he bought for her was well over 5000$. I am not exactly sure what the USCIS is looking for to exhibit proof but I am aware that they have all of the mentioned things together.

photos and cards are very weak evidences. They tend to like official documents.

The strong evidence:
1. joint tax returns.
2. joint financial documents (bank, insurance, credit statements),
3. joint residence documents (apt lease, mortgage etc),
4. govenemntal docments (driver licenses with same address).