My K1 wife divorced from previous husband before green card is processed

[MrQuery]

Hello. I hope there's someone who can enlighten me on what to do. I have quite a situation here. So this is what happened.

I am a US citizen and just recently married my alien wife. She came to the US with a K1 fiance visa, married her then-husband within 90 days and they started to process her adjustment of status. The first mail they received from USCIS was a rejection notice, they sent response, then they received a request for initial evidence. At this point, she went to visit a relative out of state from where she and then-husband were living, she never went back to her then-husband, she decided to live with her relatives. As a result, the ex-husband filed for divorce due to abandonment. Their divorce was finalized last year. Their green card application was halted, they never got back to USCIS for the evidence request. Needless to say, they never made it to the interview. The status on the USCIS website under their MCS# is 'denied'.

We married a few months ago and are in the process of starting gathering documents for her green card application. I am apprehensive in going through the process as it might open a removal proceeding for her given that she's no longer married to her K1 sponsor.

My questions are, will our application be accepted by USCIS? Will she get deported? Is she still in status? What's the best course of action for us now?

I hope someone can clarify these things for me. Thank you.

[newacct]

She is not eligible for AOS through marriage to you because someone who entered in K status can only do AOS through marriage to the person who petitioned them for K status, according to INA 245(d).

The Attorney General may not adjust, under subsection (a), the status of a nonimmigrant alien described in section 101(a)(15)(K) except to that of an alien lawfully admitted to the United States on a conditional basis under section 216 as a result of the marriage of the nonimmigrant (or, in the case of a minor child, the parent) to the citizen who filed the petition to accord that alien's nonimmigrant status under section 101(a)(15)(K) .

The alternative to AOS is Consular Processing abroad. However, leaving the US may trigger a ban depending on how much "unlawful presence" she has accrued. She started to accrue "unlawful presence" when her I-94 expired, but she does not accrue "unlawful presence" while her I-485 was pending (even though it was denied). So take the amount of time since her I-94 expired and subtract the time her I-485 was pending. If this is more than 180 days, she would trigger a 3-year ban upon leaving the US; if this is more than 1 year, she would trigger a 10-year ban upon leaving the US.

If she would trigger a ban upon leaving the US, she can apply for a waiver, but that requires showing that her USC or LPR spouse or parent (e.g. you, her USC spouse) would suffer "extreme hardship" if she can't be in the US. This is hard to show, as mere separation is not enough. If she wants to try for this, she can apply for a "provisional waiver" with I-601A while still in the US, and wait in the US until she gets the result, so she won't be stranded abroad if she is denied. I believe you have to file I-130 and it has to be approved before I-601A can be filed.

[MrQuery]

She is not eligible for AOS through marriage to you because someone who entered in K status can only do AOS through marriage to the person who petitioned them for K status, according to INA 245(d).



The alternative to AOS is Consular Processing abroad. However, leaving the US may trigger a ban depending on how much "unlawful presence" she has accrued. She started to accrue "unlawful presence" when her I-94 expired, but she does not accrue "unlawful presence" while her I-485 was pending (even though it was denied). So take the amount of time since her I-94 expired and subtract the time her I-485 was pending. If this is more than 180 days, she would trigger a 3-year ban upon leaving the US; if this is more than 1 year, she would trigger a 10-year ban upon leaving the US.

If she would trigger a ban upon leaving the US, she can apply for a waiver, but that requires showing that her USC or LPR spouse or parent (e.g. you, her USC spouse) would suffer "extreme hardship" if she can't be in the US. This is hard to show, as mere separation is not enough. If she wants to try for this, she can apply for a "provisional waiver" with I-601A while still in the US, and wait in the US until she gets the result, so she won't be stranded abroad if she is denied. I believe you have to file I-130 and it has to be approved before I-601A can be filed.

I see. Sigh. Guess we'll take the I-601 route.

Thank you for that information, extremely helpful. Much appreciated.

[azblk]

I see. Sigh. Guess we'll take the I-601 route.

Thank you for that information, extremely helpful. Much appreciated.

I have an alternate suggestion - its a long shot but so is the i-601 waiver. If your wife ad her ex husband are still civil and he can provide her with an affidavit of support - she can pursue a green card based on her first marriage even though it ended in divorce before getting a green card. Read up on the matter of Sesay.