I-130 Denied - How safe is K3?

[phil]

Question to the forum. Will start with circumstances:

Relative married and living in the U.S. with U.S husband; she is a foreign national, with a child from their marriage, and another child from previous relationship. Married less than two years, in the country since last August on a K3 visa that would expire May 2005. Husband filed for I-130 on her behalf in December 2002, subsequently INS asked for documentation from a disolution of his first marriage, so that I-130 could be approved.

Marriage was going sour, so he deliberatly withheld the required info from INS. Now, they have denied the I-130 application, and he has in turn not submitted the required paperwork for the appeal. In essence, he is trying to have his wife deported. Does not want divorce or annulment, or separation; just wants wife to leave the country with his and her children.
She wants to remain in the U.S.

What are her legal recourses?. INS website states that a denied I-130 results in a K3 expiring in 30 days. There are no other statuses available to change from a K3: it's either approval of the permanent residency, or no status at all (i.e. illegal). And she can only file for an I-539 extension of current status, if her ongoing I-130 application was valid.

All indication are that her husband knew that he would put her under the threat of deportation by ignoring INS' requests for additional information to clean up her I-130 request. But is he truly out of the woods? Seems to me that as the petitioner on her behalf, he has a responsbility for her while in the United States. If she goes "underground", is he not liable to some degree for this fact. In essence, he would have a legally-wedded wife to him that is an illegal alien? Does anyone know what this means?

Should he not at least file for legal separation or divorce? Will the INS deport her regardless of their circumstances, or is there some way for her to at least get a "legal hold" situation where she is not sent packing with her two children until he either Divorces/Separates from her, or he submits the appeal for her to get her permanent residency?

Many thanks for any replies.

[phil]

Question to the forum. Will start with circumstances:

Relative married and living in the U.S. with U.S husband; she is a foreign national, with a child from their marriage, and another child from previous relationship. Married less than two years, in the country since last August on a K3 visa that would expire May 2005. Husband filed for I-130 on her behalf in December 2002, subsequently INS asked for documentation from a disolution of his first marriage, so that I-130 could be approved.

Marriage was going sour, so he deliberatly withheld the required info from INS. Now, they have denied the I-130 application, and he has in turn not submitted the required paperwork for the appeal. In essence, he is trying to have his wife deported. Does not want divorce or annulment, or separation; just wants wife to leave the country with his and her children.
She wants to remain in the U.S.

What are her legal recourses?. INS website states that a denied I-130 results in a K3 expiring in 30 days. There are no other statuses available to change from a K3: it's either approval of the permanent residency, or no status at all (i.e. illegal). And she can only file for an I-539 extension of current status, if her ongoing I-130 application was valid.

All indication are that her husband knew that he would put her under the threat of deportation by ignoring INS' requests for additional information to clean up her I-130 request. But is he truly out of the woods? Seems to me that as the petitioner on her behalf, he has a responsbility for her while in the United States. If she goes "underground", is he not liable to some degree for this fact. In essence, he would have a legally-wedded wife to him that is an illegal alien? Does anyone know what this means?

Should he not at least file for legal separation or divorce? Will the INS deport her regardless of their circumstances, or is there some way for her to at least get a "legal hold" situation where she is not sent packing with her two children until he either Divorces/Separates from her, or he submits the appeal for her to get her permanent residency?

Many thanks for any replies.

[Still Learning]

If I were her I would be going straight to the best immigration attorney I could find. This almost sounds like a case study for a class rather than a real-life situation. What man would want his child to be deported?

[moondin]

The USC child *can't* be deported.

But i agree -- she needs to get a lawyer.

-= nav =-

[phil]

YOu're right, the child cannot be deported.
Right now, she is living apart from her husband
(for the last 5 days now). She has the children. He has given no indication that he wants to even put in a custody claim. To what extent would the INS push to get her out of the country, with a 9-month old and four year old child in tow? I know this sound awful, particular since her home country is third world, but this case is true; I spoke to a former INS agent today who told me that in seven years of working cases at INS, he never once came across a case which was so based on evil intentions on part of the petitioner. Do I need to add that the marriage had become abusive...I guess not.

Originally posted by moondin:

The USC child *can't* be deported.

But i agree -- she needs to get a lawyer.

-= nav =-

[phil]

BUt I need to add....abusive, but not enough that she could get recourse through the Violence Against Womens Act (or whatever it's called now)....there was a pattern of intidimidation, and domestic disturbance reports to the cops, but no bona-fide documented abuse. So that avenue is not available.

[swissnut]

Well no one can speculate as to why the husband would withhold the information from INS, but surely your relative was also a petitioner. Why did it escape her attention that BCIS needed this information? And furthermore, surely the relative wife would be the only person who could gain access to the evidence of the dissolution of her former marriage!

However, to answer your questions, she could go "underground" and the husband would not have any direct responsibility for that, unless he were her sponsor, and had signed an Affidavit of Support agreement with the USCIS, in which case if the wife and children were to go on any subsidy, then he could be obliged to repay the government.

The item I wish to make most mention of though is your suggestion in the last lineof your post to abuse by the husband. I agree that your relative should seek legal counsel on this immigration matter, and specifically should enquire as to whether such abuse would permit her to qualify for a waiver of the marriage based visa, as a battered spouse.

[swissnut]

I wished to add that although there may not be as much evidence of the abuse as you believe there should be, the mere fact that the husband withheld information from USCIS and di not permit your relative to follow correct protocol within the required time, would suggest to me that this also is some form of abuse. If I were in your relative's position, I would try that angle with an immigration attorney.

[marmaduk]

Swissnut,

What exactly are you indicating by going underground? Won't that just make it harder on her since her status will revert to illegal when her K visa expires?

[phil]

Actually, I think he had to sign an affidavit of support when she got her K-3 visit. Additionally, the divorce in question was his, not any on her part (this was her only marriage). Once this next marriage started going bad, he deliberately withheld the paperwork required by INS...essentially, letting her I-130 become invalidated...she did not know enough about the process to understand what he was doing. A bad situation.

[swissnut]

marmaduke
I was suggesting that she should go underground, I was simply answering phil's question as to whether it would have any impact on the uncooperative husband.

phil:

Sorry I confused the matter, so the husband had a prior marriage for which he failed to provide divorce decree. Ok, so then it had nothing to do with your relative. But at this stage in her immigration process, without AOS, she is in a bad place, if the husband is reneging on his willingness to follow through with the I-130. I would still pursue questions with an immigration attorney. With regard to the abuse, withholding her immigration petition, for no other reason than to cause her problems, could constitute emotional abuse in my opinion.

[Pandora]

First off she needs to find out if he indeed is divorced from his previous marriage and if the 2 year old marriage to her now is/was legitemate in the first place, marriage records are usually in the public domain and can be researched easily. If he was legally married at the time when he married her, a recourse is available but it will take a good attorney to proof all her side of the story and will complicate matters tremondeously, because technically he was committing a felony and she has no grounds for an immigration status. All she can do is argue her side of the story as people usually are not expected to run background checks on eachother before they get married....

If he was not married at the time he married her, she can self-petition and sponsor her immigration status, especially if he is not intentially assisting her sponsorship. It is part of his responsibility as a spouse and BCIS recognizes that this is a form of abuse and/or neglect. If they have a biological child; even more evidence to her bona fida part of the marriage (proof that the "marriage was consumpted", not my term!).

Just going "underground" will complicate things negatively and diminish her chances to legalize. Minor children, U.S. citizen children included are frequently removed with the custodial alien parent, so this is not a good part to hold on to unless the U.S. citizen child has severe or a life threathing medical condition that can only and must be treated here in the U.S..

A very important step would be also at this stage to consult a family attorney to sort child custody and more importantly child support issues out. Best would be to go with the local and state courts, because removal will most likely not take place if such issues are active... If she never worked since she arrived in the U.S., alimony may an issue as well!

This scumbag is trying get rid of his responsbilities by getting rid of his alien wife and own child the easy way out. It's a very common practice so BCIS is aware of this, too!

If she doesn't have access to attorneys, she needs to research on self-help, immigration, or religious support groups. She must get active now and involve the authorities.

[Spouse]

I really don't know a lot about what can be done, but I would probably explore the spousal abuse category a bit further and with the help of a lawyer.

There is evidence of disturbances, etc.... and he is clearly trying to manipulate her in some way. Emotional/Psychological abuse is very evident here, and although this is something that is often overlooked, it is very damaging.

If argued correctly, I believe that it could be considered comparable to physical/sexual abuse. (And sometimes the emotional abuse is actually worse) My guess would that the law does not specify the "type" of abuse, but rather the magnitude. (There is obviously documentation available for something being REALLY wrong!)

Of course, I could be completely wrong.... but I just thought I would throw my two cents in, in case there is a possibility out there!