phoenix_pete

Hi

I arrived on a K-1, got married and filed paperwork for AOS.

After six months of marriage, my wife and I are seperated. I am waiting for my conditional green card interview. No information on that yet.

As we are living seperately, will the USCIS allow me to live and work in the United States till my divorce is finalized?

Thanks

Folinskyinla

Hi:

See a GOOD immigration attorney. Ask about the "Dixon" and "Dawson" cases from the 1970's regarding "non-viable" K-1 marriages. If you get a blank stare, you are consulting with the wrong attorney. These cases are in volume 16 of I&N Decisions for those of you who care to read them.

Warning -- these cases pre-date the 1986 "IMFA" legislation which changed the K-1 arena quite a bit and CIS people like to argue that Dixon and Dawson are no longer good law. I happen to disagree and with agressive legal representation, you just might be OK -- but it might be a mighty legal fight.

Good luck.

Bob

Ouch...having a valid EAD would allow you to work, though I don't know to much about what happens when the marriage fails before getting the conditional card...once the devorce is final, you can file the waiver as far as I know...but it's certainly one to see an immigration solicitor about: www.aila.org to find one.

Goodluck.

scrubbedexpat099

http://www.usdoj.gov/eoir/vll/intdec/vol16/2615.pdf

The case.

phoenix_pete

Mr. Folinsky

Thanks for your response. Your advice is much appreciated, although it would come into play if I wanted to contest for a permanent residency.

My idea was to get to know if I can / be allowed to stay and work in the US until my divorce is finalized?

The reason I ask is that the MD State Law on marriage requires a one year separation for the divorce proceedings to be initiated. Then the divorce proceeding will probably take another six months. So, in the meantime we will be asked to appear for the conditional interview. Since we are seperated, will the USCIS grant me permission to stay/work and get a final divorce decree or will I be asked to leave?

scrubbedexpat099

Well as far as I am aware, getting divorced is not a USCIS approved status.

The crunch date will be (I think) your AOS interview date and maybe your EAD renewal, whichever comes first.

Logically you have EAD on the basis of AOS and if you do not go to the interview you will have abandoned that.

But logic may not apply.

Garfield2005

Folinskyinla, Does the same apply for people who got seperated a year after successful interview and are awaiting security clearance?

Folinskyinla

Hi:

In the scenario I note, having entered into a bona fide marriage within 90 days to the K-1 petitioner, you have complied with the terms of the K-1 admission. There is no express requirement that you REMAIN married at the time of the adjustment. That is the point of Dixon & Dawson cases. That said, the continuing validity of Dixon & Dawson is in question. I still think its good law, but it has NOT been litigated at all since the 1986 amendments -- 19 years is a long time.

Folinskyinla

Hi:

Please note that Dixon and Dawson apply ONLY to K-1 adjustments PROVIDED they are still good law. There has been NO published case law since the 1986 "immigration marriage fraud amendments" [IMFA] on this issue.

Please note that I am NOT giving a definate answer -- IMHO, this is now a gray area.

Hypertweeky

Is there a link to read about those cases?
Thanks!

scrubbedexpat099

I posted it above.

Usually where there is room for interesting legal debate, which I can see the Lawyers would love, something out of the ordinary after all, it is going to come with a very big bill.

Might be cheaper to look at an Investors Visa!

Garfield2005

So ppl who have had a successful interview for over a year and are waiting for the security check to complete and maybe going through divorce/seperation are doomed?

Rete

You might want to rephrase that statement. A successful interview is one that has resulted in an approval of your adjustment of status. You have had an interview and may have ~passed~ that portion but you have not been approved and your adjustment is still pending. It is no different for you now that you are still waiting for security clearance and the DAO's sign off on your adjustment then before you sat in front of the DAO while they conducted their interview.

You are still a non-resident; you have not been approved for adjustment; you are still in limbo.

Garfield2005

Well that is kind of a given that i'm not approved for which i mentioned the reason "security check". I meant that the evidence that was provided satisfied the officer at the time. That still does not answer my original question.

scrubbedexpat099

If the other half was posting here, I guess we would be telling the USC to withdraw the application asap and avoid the Affadavit of Support.

Do they re-interview you after the security chcek or just finalise the application? I guess if the later then you would be OK.