Question Regarding a parallel petition.

K

KK22

Registered Users (C)
Here is my current predicament:
My Father a current Green Card holder filed for my petition i-130 in May 98. When i was not married. Then I moved here on an H1-B Visa and subsequently got married when my Green card process was sponsored by my company. My i-485 is still pending from my company but unfortunately my wife and I are now seperated and am wondering if the I-130 will still hold water after my divorce comes through. The reason I am considering this is because there is a sudden instability in my job and I may have to consider all options in the near future. My 485 should however come through in the next 6 months or so (May 02 filer TSC). So will the I-130 still hold water after my divorce?

Also, on a side note, it was funny that when my wife withdrew her 485 petition her FP came through a little after but not mine! and I'm the primary beneficiary. Is it also possible for me to call USCIS and ask whether they meant to send mine but made a mistake?
 
Kk22

If you are the primary beneficiary, which you are, then your divorce should not affect your case. It will affect your spouse, who is your dependant.

So, correct me if I am wrong: Your 485 is contingent on I-130 and not I-140. Is that a fair understanding of mine?

You are expected (not per law though) to inform INS about the separation and imminent divorce. Did you do that? If called for interview, you may be asked to clarify about this point. Unless the divorce is decreed in a Court of Law, your marriage exists and INS cannot reject your wife's petition. Just because a suit of divorce is pending, you are not in soup, because you are the primary.
 
Thank you for replying poongunranar.

Thanks for your advice, I am sorry about being vague.
My I-485 is contingent on my I-140 petition. My wife and I seperated in September. She independently called the INS and withdrew her petition. I was not aware, nor did my lawyer inform me that I have to inform INS of a pending Divorce. According to NC law I can get divorced after 1 yr and 1 day of seperation. I know this should not effect my I-485.

My concerns are because of a recent instability in my job. If I was to lose it I would have to find another one and use AC-21. My Jobfield is very specialized and currently only two jobs listed on Monster.com for my area. Before I even moved here my dad who is a green card holder petitioned for his unmarried son over 21 under I-130 (1998). The petition became invalid when I got married. But now that I am going to be divorced in September I was thinking I would not have to excercise an AC21 and just follow the I-130 route ( I know i will have to file I-485 again) and not have to worry about staying with this company. Hence the question will that I-130 still be valid since it is for an unmarried child of a permanent resident or divorced does not mean unmarried.
In which case I will have to make the best of my situation with my company. Also, based on your advice I should be informing the USCIS about my impending divorce.
 
KK22 -- Please consult an attorney on my opinion

Thanks for your clarification, KK22. You belong to a state where Convertible Divorce is in vogue, wherein a separation for 366 days will automatically be construed to be a divorce. Could you do yourself a favor? Find out from your local state laws if such a divorce is:
  1. divorce a vinculo matrimonii, OR
  2. divorce a mensa et thoro

(1) is a total dissolution and (2) is a mere separation. Now, a decree according to (1) will look more like an annulment with the legalese clearly pointing out to, "It is considered, ordered, and decreed by the court that the marriage contract heretofore entered into between the parties to this case, from and after this date, be and is set aside and dissolved as fully and effectually as if no such contract had ever been made or entered into.". This is more like an annulment. In this case, you can claim or even dispute that as per law, it is to be construed that such a marriage or a contract never took place in the first instance after being set aside with a divorce a vinculo matrimonii.

Now, even if you are divorced, you are either Single or divorced. You cannot select Unmarried as your status.

I, in all probability will say that your marriage nullified your I-130. Therefore, if you want to go that route, a fresh I-130 has to be filed. Your father should be able to file a fresh I-130, because you are not in a married state of life anymore. However, you cannot piggy-back on your old I-130. This is where you need to consult your Immigration and Civil Family Attorneys.

Also, those of you who are in convertible divorce states like NY, NC must make it a point that you inform INS about non-existence of conjugal relationship due to separation and wherein a divorce a mensa et thoro is feasible after 366 days, because, at least in KK22's case, his wife did a right thing in informing INS and withdrawing her application. In other cases, if the wife doesn't do that and the primary husband fails to inform INS, then as per INS interpretation he is a party to fraud. This is because, INS treats separation arising out of (1) AND (2) differently. I had once read an illegible memo in this regard, sent to field-offices, just recently. I stand by what I have claimed in this paragraph 100%.

KK22 -- Don't worry, you are fine w.r.t the last para. Your wife did the right thing.
 
THanks.

Thank you for your excellently detailed advice. I thought as much about the original I-130 and was right. Hopefully, a letter to my congressman may expedite the process for my I-140 based 485.
 
You must log in or register to reply here.
Top