K Visa Out of Status marrying a US Citzen

[kiddhan625]

I entered the country legally and have been in the country for several years (15). 4 years ago in 2001, filed for an adjustment of status thru marriage to a US citizen. Based on the circumstances at the time(him being in medical school across the country), my ex could not attend the interview and due to non-timely follow up,the case was closed. However, when we decided to re-file, end of 2003,our relationship had already exhausted itself and we filed for divorce begining of 2004. At the current time I am "out of status" but I am in a relationship with a US born citzen which may lead to marriage. In that case, I would like to know what would be the procedure in filing my paperwork. Does that mean I have to leave the country and come back on a fiancee visa or could I file residing in the country?

 

[kiddhan625]

Anyone with any kind of info would be helpful. Thanks

 

[Husty]

If you marry the US citizen you can apply for adjustment of status without leaving the U.S. However, if you do leave, you'll need the I-212 because of your "out of status" situation. It all depends on what you want to do.
I'm NOT a lawyer, this is NOT legal advice!

 

[kiddhan625]

Thanks Husty. Appreciate the information. Spoke to two lawyers and they said I am grandfathered into the a previous clause. So it should be simple process of AOS.

 

[Husty]

As long as you were admitted or paroled into the US, you're fine to adjust as immediate relative. (only as immediate relative to USC).

 

[kiddhan625]

As long as you were admitted or paroled into the US, you're fine to adjust as immediate relative. (only as immediate relative to USC).

I entered legally if thats what your referring to?

 

[Husty]

If you have been admitted or paroled into the United States (had a stamp in your passport) and were NOT admitted as a crewman or TWOV (no visa for transit) you're ok. That's pretty much it. There's TONS to consider when filing for AOS, you're only looking at the tip of the iceberg here, but it's a good start, you're concerned with statutory eligibility.
I'd be concerned with filing another I-130 with a different pettitioner, this could sound the alarm to the USCIS when it comes to marriage fraud. But I could talk about AOS for hours, and here's not the place to do so.

Remember, this is all based on your spouse being a US citizen... LPR status will not allow you to AOS.

Good luck.

 

[kiddhan625]

If you have been admitted or paroled into the United States (had a stamp in your passport) and were NOT admitted as a crewman or TWOV (no visa for transit) you're ok. That's pretty much it. There's TONS to consider when filing for AOS, you're only looking at the tip of the iceberg here, but it's a good start, you're concerned with statutory eligibility.
I'd be concerned with filing another I-130 with a different pettitioner, this could sound the alarm to the USCIS when it comes to marriage fraud. But I could talk about AOS for hours, and here's not the place to do so.

Remember, this is all based on your spouse being a US citizen... LPR status will not allow you to AOS.

Good luck.

Thanks Husky. Things just didnt work out in the first marriage as we just grew apart as he was in medical school on the opposite coast. But my understanding is as long as you are honest with USCIS and give details about the previous marriage that it should be ok? My spouse is concerned about me being able to get AOS before we can get married! So I am trying to get all the research done before we make a decision.

 

[Husty]

You need to be honest with the adjudicator at the interview, it's very important to be truthful and respond to their questions with honesty. They need to see that you're not moving from person to person to get AOS. Some people do and USCIS is only trying to protect the integrity of AOS so it can remain a possibility to those who actually need it. Getting married right away could be a problem, you should "date" and get to know the person a little better so you can prove that you entered into the marriage for love, not just right away to get AOS. This is me telling you to be careful and avoid the possibility of being told you're committing marriage fraud. Other than that, you're set to go.
One little problem, you should ask your spouse to call his congressman and ask to vote against some regulations in the new H.R. 4437. While the bill includes some good measures, the bill calls persons like you, and your future husband "felons". In fact, if this bill were enacted today, you two would be thrown in jail on felony charges. As absurd as it sounds, it's true.