Failed Marriage - I751 / I130 / H1 Question

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mai14cc

Registered Users (C)
I have a somewhat complicated case which I would like for people to advice on.

Background: My sister got married to a USC in Oct 06. She filed for a green card immediately. They were interviewed in Feb 07 and was approved pending name check. She is stuck in NC and hasn't heard anything since. She is now having some marriage problem and considering a divorce. Of course, she will wait until she receives the conditional green card before getting a divorce.

Question 1: Once she receives the green card, is it safer to file the I751 in two years by herself or joint with her husband which he appears to be willing to help with. They have a long term relationship before marriage (more than 10 years). So, it's not hard to establish that the marriage was entered in good faith. Although they don't have too much financial documents together. BTW, the marriage is ending due to cheating and she does not wish to reconcile with him.

Question 2: While she has her contional green card and is waiting to file for removal of the conditional status with form I751, is it ok for my mom who will become a green card holder then to file for her at the same time with form I130. This is in case if her I751 is denied, she would already be in line for a priority date. Is this possible while she already has a contional green card and the I751 is pending or do we need to wait until USCIS approves or denies I751 before we can file for the I130 under my mom?

Qustion 3: Can she continue to stay here if her I751 is denied and we file form I130? She would be here waiting for her priority date to become available. She will be going to / completing school during this time.

Question 4: She has been on H1 for about 4-5 years previously (prior to her marriage). Once she's out of school, and while she's waiting for her priority date to become available, can she file for an H1 if a company is willing to sponsor her? Will she still be limited to the 6 years period, which would inlcude her prior H1 period? I wasn't sure if you can file for H1 while waiting for a priority date since H1 is a non-immigrant visa. So, this would appear to be a conflict since she's already waiting for a priority date / immigrant visa. She would need an H1 just so she can work after graduation while she waits for her priority date.


Thanks in advance for anyone who responds!! :)
 
Q1. - If the divorce has already taken place, it would be fraudulent for the two of them to file for removal of conditions together as if they were still married. Seems like the only possibility would be filing on her own.

Q2. - If a person already has a GC, they are not allowed (by law) to apply for another one, so the I-130 would likely be denied immediately.

Q3. - You have to leave the country, or switch to another legal status such as F1 or H1. Filing an I-130 does not entitle the beneficiary to any status within the US until the priority date becomes current and they can file I-485 AOS.

Q4. - Not my area of expertise. I'll leave others to comment on it.
 
mai14cc said:
Question 4: She has been on H1 for about 4-5 years previously (prior to her marriage). Once she's out of school, and while she's waiting for her priority date to become available, can she file for an H1 if a company is willing to sponsor her?
Yes, her employer can file the petition if she did not reach 6 year milestone.

Will she still be limited to the 6 years period, which would inlcude her prior H1 period?
6 year clock won't be reset until she stays out of the US more than a year.
And 6 year clock stops while she was NOT on H1 status.
Click to expand...

You did not mention what status she has now.
 
A1: She needs to file an I-751 as soon as the divorce is final ,even if it is before her 2nd PR anniversary.
A2: You are jumping the gun here. CPR status is the same as LPR, only with a condition attached.
A3: If her I-751 is denied, she will start to accrue illegal presence. However an I-130 can be submitted.
A4: I believe the H-1 clock is reset if someone leaves the US. However, again you are jumping the gun. A successful I-751 is possible even for someone who is divorced. The key is to prove that the marriage was bonafide and not entered into to derive an immigration benefit.
 
Thanks for everyone's input! It certainly clears things up and good to know what the options are.

My sister is currently waiting for a decision from the USCIS regarding her AOS. She filed her AOS back in Oct 06 and was interviewed in Feb 07. She is now stuck at name check and is in a terrible state as she wishes to divorce but cannot. It's worth the wait...I suppose...depends on how long one could be stuck at name check.

Now, a different take on things. If her AOS gets denied, is there any way to appeal? She suspects a hateful in law who might have send in a letter to USCIS on her behalf (although the marriage was bonafide). Everything is going down the hill with the father in law and he might have send in a letter of some sort regarding their marriage being fraud.

My sister is so afraid now that she won't even go to a infopass to check on what's the name check status. She's afraid she'll get arrested. I highly doubt she will since everything was legit and she is at no fault in everyway. Any suggestions?
 
hey look on the bright side if her namecheck gets approved after 2yrs of marriage she will get a 10 yr greencard and then she can divorce anytime
 
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