Divorcing as I-485 is pending

J

johnc65

Registered Users (C)
(I posted earlier about my own issue, input from everyone was very helpful, I have a question about a friend's issue who doesn't have internet)

Individual enters US on a K-3 visa, and GC interview is pending. In the meantime he has countless arguments with his wife and the two decide that they shouldn't go forward with the GC. In fact, the individual had fallen in love with someone else (another US citizen) since he entered the US, and I don't think his wife really cares at this point.

My question: if the individual gets divorced right now and cancels the GC interview, what status will that put him in? Will he immediately be put into removal proceedings? Or can he cancel the GC petition, get remarried, and re-file based on his marriage to the new US citizen?

This person is actually my friend from my home country and I would like to help him out in whatever ways I can, despite the fact that he might not seem like a good person. Thank you.
 
You can be fairly sure that USCIS will be highly suspicious of anyone divorcing the person who brought them in on a K-3 visa and then immediately marrying someone else in order to file a new I-130/I-485.

If an I-485 is withdrawn or denied, the beneficiary basically goes out of status and needs to leave the country immediately.
 
While it's true that the person will be out of status when the I-485 is withdrawn, when the new I-485 is filed any unlawful presence will be forgiven (assuming the new I-485 is filed before removal proceedings start). Perhaps the more important question will be if the person is considered to have legally entered, which is another requirement for AOS, although I don't know what fraudulent reason someone might be considered to have to enter by marrying a US citizen, only to get divorced and marry another US citizen, doesn't seem to me like anything would be gained by purposely doing this.

But, if they want to be safe, he withdraw the petition, go back to his home, and come back on a new K-1/K-3 from his new petitioner. He probably didn't even have time to really settle in yet anyway I assume, so it may not affect him much (other than having to spend a couple months apart from his new gf!). Of course, he and his new gf need to want to have a good faith marriage already for him to come back.
 
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Extract from: http://travel.state.gov/visa/laws/telegrams/telegrams_1431.html

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[FONT=Courier,Courier New]Can K3/K4 Applicants Change To Or From Another NIV Category Once They Enter the United States?[/FONT]
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[FONT=Courier,Courier New]35. According to the USCIS regulation, "K3 and K4 nonimmigrants may not change to any other nonimmigrant classification; this is comparable to the prohibition against adjustment of a K to LPR on any basis other than the marriage on which the K petition was based."[/FONT]
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[FONT=Courier,Courier New]36. Furthermore, non-immigrant aliens will not be able to change from another NIV status to K1, K2, K3 or K4 status while in the United States.[/FONT]
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[FONT=Courier,Courier New]37. According to the USCIS rule, the alien spouse of a U.S. citizen and a child of that spouse who are already in the United States may have the U.S. citizen file an I-130 petition on their behalf with USCIS; the alien spouse and his/her child may then file with USCIS for an adjustment of status to LPR. While either of these are pending, the alien spouse and his/her child may remain in the United States without accruing unlawful presence, and they may also obtain work authorization and permission to travel outside the U.S., and they may continue to do so without K3/K4 status or visas.[/FONT]

I knew this applies to K1 holders (that they can not adjust status except through marrying the original K1 sponsor).

Well, according to this, it applies to ALL K visa holders and in that case... the OP could not marry this other USC and apply for AOS, since his entry under the K visa only allows for AOS by the marriage with the original K sponsor?

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Well, then it looks as if the answer is that he should go back (and withdraw or abandon his pending application), and if and when he and his new gf are ready to get married, file for a new K1. Or they get married here before he leaves, or there when she visits, and he comes back on K3.
 
I kinda had a suspicion that might be true, but didn't have anything to back it up with. Not surprising really.
 
Thank you everyone for the responses. This forum is amazing I think.

But the rule itself seems strange. According to that, the spouse of a US citizen who entered on the basis of that marriage cannot be divorced and adjust to LPR, but, for example someone on a tourist visa who likewise gets married to US citizen, then gets divorced and falls out of status, can get remarried to another US citizen and adjust to LPR without any penalty, because unlawful presence can be forgiven. Thus you're actually getting punished for entering on a K3 visa rather than a B2 visa or something. Am I wrong in that assessment?
 
Your assessment is correct.

However, you must recall the "merit" on which the visa and therefore legal entry to the USA was obtained.

A B1/B2 visa was obtained by the alien, based on his non-immigrant intent and ability to convince the consular officers of his ties to his own country. Those visa are obtained by the alien by overcoming 214(b).

Whereas, K Visas, are obtained BECAUSE of an US Citizen sponsoring a fiancee/spouse and its dependents. The alien has immigrant intent and is only granted a visa because of the family relationship with the US Citizen.

To be fair, I believe that the point of that restriction on the K visas is put there to protect the system from being abused on K visas. Such as people getting engaged, getting a visa to enter the USA and then marrying someone else. I was not sure, but it does appear to apply to K3 visas as well.
 
K-1, K-2, K-3 and K-4 visa holders indeed need to depart from the US if the relationship to the original sponsor no longer exists. I guess this is the flip side to a visa that is supposedly quicker/easier than coming on an I-130 sponsored immigrant visa.
 
But what about the "intent" of a tourist visa holder who decides to marry while in the US, then file for a green card? It seems like they're violating their promise that they had no intent to stay permanently at the time they entered.

PraetorianXI said:
Your assessment is correct.

However, you must recall the "merit" on which the visa and therefore legal entry to the USA was obtained.

A B1/B2 visa was obtained by the alien, based on his non-immigrant intent and ability to convince the consular officers of his ties to his own country. Those visa are obtained by the alien by overcoming 214(b).

Whereas, K Visas, are obtained BECAUSE of an US Citizen sponsoring a fiancee/spouse and its dependents. The alien has immigrant intent and is only granted a visa because of the family relationship with the US Citizen.

To be fair, I believe that the point of that restriction on the K visas is put there to protect the system from being abused on K visas. Such as people getting engaged, getting a visa to enter the USA and then marrying someone else. I was not sure, but it does appear to apply to K3 visas as well.
Click to expand...
 
Triple Citizen said:
K-1, K-2, K-3 and K-4 visa holders indeed need to depart from the US if the relationship to the original sponsor no longer exists. I guess this is the flip side to a visa that is supposedly quicker/easier than coming on an I-130 sponsored immigrant visa.
Click to expand...

So will he necessarily be put into removal proceedings immediately upon cancelling the GC application?
 
johnc65 said:
But what about the "intent" of a tourist visa holder who decides to marry while in the US, then file for a green card? It seems like they're violating their promise that they had no intent to stay permanently at the time they entered.
Click to expand...
The USCIS recognizes that intent can change from nonimmigrant to immigrant intent after someone enters the country, and a certain time has elapsed. However, they don't recognize that the intent of the K-1 visa holder to marry his or her petitioner changes. They do recognize changes in other situations, such as intent to change schools on F-1 or employers on H-1B without going back, but not spouses on K. I guess that's the way the lawmakers intended.
 
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Triple Citizen said:
K-1, K-2, K-3 and K-4 visa holders indeed need to depart from the US if the relationship to the original sponsor no longer exists. I guess this is the flip side to a visa that is supposedly quicker/easier than coming on an I-130 sponsored immigrant visa.
Click to expand...

I am not so sure about K-3/K-4 holders.

I-485 clearly states that you are ineligible to file I-485 if

7. You were admitted as a K-1 fiancé(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 fiancé(e) and your parent did not marry the United States citizen who filed the petition;

but does not even mention K-3.
 
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