S Folinsky

Based upon OP’s description I would NOT describe it as “fraud.” But it certainly looks sketchy.

civilservant

Has all the elements of a material misrepresentation to me.

They presented themselves as a couple. Had the officer known they were not, he might well have reached a different decision on the AOS petition.

SanDiegogirl

Really...? Your application for the green card is based on you marrying a US citizen, and by the time of the interview you have already separated and one of the couple has a new partner? However, you don't provide this new info so that the non US citizen can get the green card and remain in the country.
Sure sounds like visa fraud to me ....... even if you married in good faith that situation is now certainly not the case. The OP was only able to remain in the US because her ex was complicit in the deception.

newacct

According to Matter of Sesay, someone adjusting from K1 (i.e. married within 90 days of entry on K1) can have AOS approved even after they have divorced. So I would not say that the fact that they have separated by the time of the interview would have necessarily caused their green card to be denied.

civilservant

You're missing the point.

Yes, she might well have been approved had they told the truth, but they didn't.

It's the presentation of a failed marriage as a currently successful one that is the problem. It's a material misrepresentation, and could cause serious problems down the line.

newacct

But is the current state of the marriage even material? Sesay seems to say that K1 adjustment just depends on them having entered into a bona fide marriage within 90 days of entry on K1.

Also, the fact that they both went to the interview doesn't mean that they represented that the marriage is successful; only that they are still married. It seems from the OP's post that the officer didn't ask many questions about the marriage.

SanDiegogirl

Considering the US spouse is the sponsor for the application and commits to certain financial obligations I would say that if the ECO had known that the couple sitting in from of them had actually separated and that US citizen had no intention of supporting the applicant from that point forward and that their so called bona fide marriage was all over, yes, I think the state of the marriage at time of interview IS material.
The only reason the US citizen was at the interview was to mislead the interviewer into thinking the marriage was continuing so that the applicant could remain in the US. The applicant had no other reason for being allowed to stay.

scrubbedexpat099

The sponsor had signed the I 864, had not withdrawn the I 864.

I have heard of Sponsors seemingly willing to do this even in such circumstances, I assume it is pretty rare.

SanDiegogirl

but he does not answer the phone, respond to my text messages or emails regarding getting a divorce. He simply says he is too busy and won’t have time to sign the papers with me.

Good luck getting any support from this guy then .....

scrubbedexpat099

That would be a matter for the Divorce Lawyer.

Rete

She is the one that will be getting the financial reimbursement if she obtains mean tested benefits but rather the government is they go after him.

If they were not legally separated, then they were still viably married. They shared the same household. So he had a girlfriend. Big deal. Many people have open marriages and many married men will stray.

The interesting time will be when she attempts to remove conditions from the green card after the divorce is final. An astute examiner will see that divorce was filed almost immediately upon acceptance for residency. Might she have to explain that?

scrubbedexpat099

She would file with a divorce waiver, presumably has BF as a back up, in fact she can file to remove conditions as soon as divorce finalised.

Back to showing marriage was in good faith, not all are interviewed.

Rete

Yes, I'm aware of that. My assertion is still the same regardless of when she files for removal of conditions.

newacct

Even if the OP were divorced, their AOS, based on marriage on K1 within 90 days of entry, can still be approved and they can be allowed to stay. What matters is that they entered into a bona fide marriage within 90 days of entry on K1. So why would it be necessary to make the interviewer think that the marriage was continuing?

SanDiegogirl

I think that a marriage which ends (couple have separated) within 8 months of its inception and where one of the partners a) already has another love interest, and b) gets to stay in a country because of said marriage to a citizen of that country, could possibly be called a bona fide marriage.
Marriage of convenience, yes.