K Visa Double marriage based Permanent Residence

[oink]

I seem to have a unique immigration case where I am at odds on what to do.

I applied for an I-485 (still pending, given long wait times in NY) when I got married to a citizen more than a year ago. That marriage has since dissolved and now I am planning to get married to my current girlfriend who is a citizen as well. (for good, hopefully)

How do I go about cancelling my current permanent residence application and restart it over with my current girlfriend assuming that we got married? What are the steps that I need to do? What's the process?

Anyone has any experience in this? Please help!

 

[NYClex]

Your case sadly is not that uncommon. There is one major pitfall and that is that you are "out of status" as soon as the divorce is finalized or your first spouse withdraws the petition!

In other words:

If you had been "in status", that is allowed to be in the U.S., only because of your application for adjustment of status, then this became invalid the moment the divorce was finalized. If you have no other status to fall back on you would have to leave the country on that day.

Example 1:

Immigrant entered the country with a B-2 tourist visa and was given an admission for 6 months. Immigrant married citizen in that time and applied for AOS. At the end of the original 6 months he was technically "between status" (no longer a tourist, not yet a legal permanent resident). As long as the application is processed the law sees that as being "in status", that is, giving you the permission to be in the country, IF the underlying petition is still valid, that is the petition by the spouse on behalf of you. The moment the marriage is dissolved (or the citizen withdraws that petition) there is no basis for the status anymore and the AOS becomes invalid. Immigrant would be "out of status" and would have to leave the country immediately.

Example 2: Immigrant is in the country on a Student Visa F-1 and is enrolled in his studies which will probably take 3 years. He has been admitted for the time he needs to graduate, or in other words, as long as he is a student, he is "in status." After a couple of weeks studying he meets citizen, marries her and applies for AOS. But after 8 months things go downhill and they get a divorce. Again the AOS application will be void, but his original F-1 status is still valid. He can stay in the country until he graduates.



Now, obviously, immigrant in example 1 has a problem. He has to leave the country. The new fiancee then can petition and he can apply for a K-1 finacee Visa and return to the States to marry her and then he can again file a new application for AOS. BUT HE cannot do so if he is out of status and just remaining in the country.

Immigrant in example 2 on the other hand does no need to leave the country and his new spouse can simply file a new petition and he can file a new application for AOS.


So if you are in a situation like in example one, you would have to leave the country first (or obtain status in any other way) and then to start the whole application process again.