bfry77

hi, i happened to stumble across this site today and thought perhaps i can get some help, advice here.

to make a long story short, because i had typed an obscene amount and went to post it and it said i was logged out lol.

my situation is this, im from Australia.. myself and my daughter came to the US on a visitors visa (i-94w) in 99, if we hadn't rushed due to me being pregnant we would have came in on a fiance visa, anywho my husband and i have been married for 9yrs now, we got married in july of 99 my visa expired in Aug 99, we did try to file the papers with the help of the navy, as my husband was in the military at the time, but we got nothing but the big ol run around by them, and with his constant having to go out to sea on military exercises and then the 8mth tour to iraq it became hectic, through the year's we just could never afford to keep up with the constant price change of the papers for permanent residency.

believe me no one is beating themselves up more then i am about not pushing hard enough to get my status fixed, but i cant turn back time.

through the years we have 2 kids together (note the child i was pregnant with when i moved across here was his) ..earlier this year we finally had the money and everything set to file my papers, but i was suddenly told that he would like to seperate as he wasnt sure if he loved me or not anymore, the money i had saved i ended up having to use to move myself and the 3 kids (2 with him and my eldest from a previous relationship with a bf from australia) to my mum who is a permanent resident herself. (im in indiana, he is in virginia)

i have spoken to a lawyer who deal's in this sort of stuff and she informed me that i had 3 option's in filing my papers.

1. file myself as an abused spouse.
2. have my mum file for me, so long as she becomes a US Citizen first.
or
3. Id have to move back in with my husband, have been married for at least 10yrs, have him file the papers for us (because its both myself and my eldest daughter that need to adjust our status) and have proof that we have a marriage of "good faith" ..kids together, made a life together, marriage paper's, leases, tax's, bills, bank acc's etc.

i refuse to go the abused spouse route, and having my mum become a US citizen actually makes her surviving here even more difficult then it already is, due to health and personal reason's...and i dont wish to put that upon her

so i told my husband these and at first he didnt have a problem with me moving back in, now his telling me he thinks its all a croc of doodoo and that there has to be some loophole where we can still stay seperated (we arnt legally seperated) and he can still file for me that way, because he now wants to avoid me moving in if we can do it that way.

I obviously can't work legally, and have not attempted to try to work due to it being illegal for me to do so, so currently the only income i have coming to me is the verbal agreement we made on the child support.

I need some help, advice, info..anything to help me out with this
can we actually file together while we are seperated,.
Also it seems us divorcing will happen, much to my pain and misery.
what would happen to my daughter and i if say we get permanent residency before the divorce and then after the divorce.
just any sort of sound advice and info would be much appreciated.

If i had my way, id just take all 3 kids and move back to Australia, but since 2 of the kids are also his..well yea.

thanks
-brooke.

Noorah101

Why don't you want to go the abused spouse route? That is what seems to be happening to you, after all.

Even if your mom became a USC, you would still be remaining here illegally.

No, you can't file AOS paperwork if you are not in a valid marriage. You cannot "get back together" just to file the paperwork and put on an act of being married. That's a marriage of convenience so you can receive an immigration benefit and is illegal.

Rene

bfry77

the abused spouse route, i dont want to take because i wasnt physically abused, i know the types of abuse and although there was some slight emotional and mental abuse, believe me i never cowered in a corner and accepted it, i gave back as much as i got, and also regardless of him wanting a divorce, although his not verbally said he want's it, i still very much love him and care about him, and i feel if i went that route also it would affect him and his life (i see it as he would be branded as an abuser) which wouldn't help him with work etc, which in turn would affect myself and the kids with child support and stuff.

as to the other things you mentioned, my feelings are the same on that, which leads me to the conclusion that i am royally ........

which is worrying me immensely

Rete

He wants a divorce. That's fine but you were married to him for 9 years. Doesn't that count for something. The info you were given is correct. What state does he live in. Some are quick to adjudicate the I-485 and others aren't. Unless he is planning on marrying immediately after the divorce, I can't see why he can't be generous and give a shot at making things work by having you live with him while the I-485 is being processed.

Noorah101

I don't think there is anything we laymen can tell you here that your immigration lawyer hasn't already mentioned....it just depends how much you want to stay here legally, I guess. If you really want to, you'll find one of those paths which will work for you.

I think your mom would actually be entitled to more health benefits as a USC rather than an LPR, wouldn't she?

Rene

bfry77

The only reason i want to stay here legally is because he is forcing my hand on not allowing me to take our kids back to australia with me, and i refuse to leave the two younger one's with him, because although he can support them financially... mentally, emotionally and physically he can not

there is nothing more id like to do then to make our marriage work, but you cant make someone want that too.

as to what state he lives in, he is living in Virginia, and im currently in Indiana.

oops forgot, as to my mum becoming a citizen, she can, but she would have to make enough money to show that she can support us, with all her health issue's she would never get a job that would pay her enough and give her the medical coverage that she needs, and to be honest and eventually she does have plans on moving back home to australia.

Noorah101

If he is having mental, emotional, and physical problems, then perhaps you really should reconsider the abuse waiver to get your green card that way. I guess you have a tough choice....do you want to stay here legally with your children, even if you have to drag him through the mud a bit? Or do you want HIS life to be all comfy and easy, while you struggle to stay here illegally, unable to become legal and unable to work and provide for your children yourself?

Rene

bfry77

lol im not saying he has mental problems and is physically abusive with me or the kids, not at all...but during the years of our marriage certain event's like myself and our youngest being sick, he decided to go snowboarding with his friend, when it came to want's before family needs, he went with his wants almost all the time, when it came to everyday interaction wit hthe kids, dinner, bath's, bedtime, playtime, even emergency trips to the hospital it was always me. in that sense is why im saying he could only support them financially.

your question though is a sound one and its one i really cant answer without alot of thinking on it first.

this is all just part n parcel of the stress and pain im going through at the moment.

meauxna

Don't get too hung up on labels, that's my opinion. I suspect you are averse to the 'abuse waiver' because it sounds nasty. But what else was it, other than nasty, that he did not take responsibility for his family? Besides the gravity of marriage itself, the biggest responsibility I've ever felt for another person (I am not a mother, but maybe this resonates with your mother experience) was bringing my husband to the US and making sure that his future was secure if I got knocked down by a bus or *whatever*. I felt entirely responsible for doing my part in getting his paperwork sorted out.

I appreciate that you take shared responsibility for not filing your paperwork, but IMO more weight is on his shoulders for this.

The bottom line is that this may be your only option for staying with your kids. You should consider it seriously.

bfry77

thanks

i have and am considering it..

his whole reasoning for not getting my paper's done was that I didnt push hard enough, i.e i wasnt his mother and said NO im more important then your wants.

but as far as "abuse" ive spoken to someone about every form of abuse and i also know that some people dont realise it's abuse or are in denial about it, but i can honestly and safely say there truly wasn't and isnt any grounds to scream abuse just to get my papers filed.

when we argued, it was verbal yes, we would both get very heated in our words and we would sling ALOT of hurtful things at one another, but only in those moments of arguing and we all know people say things at time they dont mean out of anger, other then that, there was never anything to say he was an abuser.

i'll quote something that he found where his interpretation of it is that we can file while still living separately, maybe im thick, but i dont see it.
--------------------------------------------------------------------
INA Section 216: This Section sets out applicable definitions and rules regarding marriage fraud.

Conditional resident status is conferred on an alien to a United States citizen or a lawful permanent resident in a marriage deemed bona fide although less than two years old. The status is conditional for another two years. If the marriage is more than two years old at the time of application for status, the alien can be approved for lawful permanent status without any condition.

The U.S. citizen or a permanent resident alien may petition for their alien spouse to receive an immigrant visa. An alien with an approved immigrant visa petition may be issued an immigrant visa by a U.S. consular post abroad and use the visa to be admitted to the U.S. as a permanent resident. Also, some aliens already in the U.S. may use an approved immigrant visa petition to gain permanent resident status through adjustment inside the U.S. The INS will interview the couple to determine the bona fides of the marriage. This status, however acquired, is a very important step for any alien seeking to remain in this country.

Conditional resident status becomes permanent after the second anniversary of conditional resident status if the alien and the petitioning spouse jointly file a I-751 petition signed by both parties. This is filed within ninety days of the second anniversary of the granting of conditional resident alien status. Thereafter, they are interviewed by an INS examiner to see if their marriage is legitimate.

If an I-751 joint petition cannot be filed, the conditional resident alien may request a waiver based on one or more of the following grounds: extreme hardship if deported, termination of a good faith marriage, or battered spouse or child ground.

The good faith waiver requires that the qualifying marriage was entered into in good faith by the alien spouse, the alien was not at fault in failing to meet the requirement of filing the joint petition, and the qualifying marriage was terminated other than through the death of the petitioning spouse. The battered spouse or child waiver must show that during the marriage the alien spouse or child was battered by or was the victim of extreme mental cruelty by the U.S. citizen or permanent resident spouse or parent. The waiver for a battered spouse does not require that the qualifying marriage be terminated.

It should be noted that the first and third elements are the same for both grounds. Attorneys representing an alien in a divorce must be concerned with the statutory jurisdictional requirements and the necessity for alleging grounds in a divorce action.

--------------------------------------------------
what frustrates and upsets me is that this was NEVER marriage fraud. EVER.
i never came to the US with the intent of getting married just so i could gain a faster way to legally living here.

ive made an appointment to speak to the lawyer again and thoroughly go through everything with her again though.

meauxna

Look, I don't know a lot about domestic violence, but I know a little bit about abuse, which is something different.
You also say that you know some people are in denial about abuse, but not you. Well, maybe you do not see his actions as abusive, but you accept his pushing it back on you for not nagging him enough?

Let's say it is a requirement for your kids to be vaccinated to go to school (participate in an institution). Oh wait, it is a requirement.
Vaccines cost money, going to the doc costs money. And those diseases aren't really around anymore anyway, are they. So say you skip the vax because you don't have the time, money, energy, will. What would Child Protective Services call your actions?

It's just one way of looking at it. The Violence Against Women Act (VAWA) is to protect immigrant women and children from all sorts of manipulation, bondage, economic slavery etc. Your husband is willing to leave you, after 9 years of marriage, with no legal way to live in this country or provide for yourself and your children.
What else do you call it?

Abuse does not equal only beatings or yelling.

Noorah101

bfry, I feel bad that you are going through such a hard time. In my eyes, the very fact that he didn't do all it took to get you a legal status here, and now wants out of the marriage, knowing there is a chance you can't stay here legally, constitutes as abuse already. In this case, abuse = neglect.

Rene

bfry77

i fully understand and appreciate what everyone has told me thus far, i am taking everything said into consideration.

i have alot to think about.

and also thankyou for answering the question's about what the lawyer had told me were true or not.

ian-mstm

He is currently blackmailing you - using your own children against you. Something to consider when you deny that you are a victim of abuse.

Ian

meauxna

Thanks for hanging in with it; I know it's a hard conversation.

I did mean to comment about one thing the lawyer said that you may have misunderstood.. there is no requirement that you have been married for 10 years.. I have a guess about what was meant, but want you to know it's not what you wrote here.