Published on Lawyers.com and the Epoch Times on September 6, 2013
Q & A 1. 2. 3. 4.
Q&A 1.
If I get a Divorced, Is There a Possibility of Still Becoming a Legal Resident?
I have been living as an immigrant in the U.S for 13 years now, and a few months ago I got married to my partner of 10 years who is in fact a citizen. Our marriage is going downhill, and we both are starting to feel a divorce might be an option. If we do get a divorced do I automatically lose my residency? If I do is there any way I can get it back? Or should I just not get a divorce?
Attorney Lee answers:
If you are already a lawful permanent resident, divorce from a U. S. citizen would have no effect upon your residence status. If on the other hand you have no status and your spouse is only now applying for you to become a lawful resident of the country, a divorce would likely mean the end of the application for residence status through your spouse. I do note that if there is no legal separation or divorce at the time of the U.S.C.I.S. adjudication of such an application, an officer would have authority to grant residence status if he or she believed that your marriage was bona fide at its inception. Also if your spouse is an abuser, you might be able to obtain residence status as a battered spouse if you can prove the abuse.
Q&A 2.
How to Deal with Concurrent K1 Visa and DV Lottery Applications?
My fiancée applied for a K1 Visa for me and thereafter I was notified that I was selected for further processing for 2014 DV lottery. My local embassy has now contacted me regarding K1 visa with an interview pack. I have the following questions: 1. Can I run parallel applications, i.e. K1 and DV lottery? 2. Can I formally suspend the K1 visa process or extend the approval validity period pending DV lottery decision (I should only need 6-8 months extension), as the lottery route is preffered? 3. If I proceed with and am successful with the K1 visa (and on the basis that the visa is valid for 6 months), instead of going to the US, can I wait and proceed with the DV application and provided it is successful enter the US on DV visa instead of the K1 visa? What then happens with the K1 visa?
Attorney Lee answers:
Applying for both K-1 and DV lottery applications is not inimical in the sense that they both presuppose that you will ultimately immigrate to the States. That being said, you can explain your situation to the consulate or embassy and it will be its decision as to whether to allow pending of the K-1 petition while you apply for immigration under the DV lottery. You can also apply for both and if first successful on the K-1 attempt wait on the results of your DV application and explain your plan to the consulate or embassy. If successful on the DV lottery application, you could move to cancel the K-1 visa with the appropriate explanation to the consulate or embassy. I suggest that you keep as much material as you can proving the bona fide relationship of yourself and your fiancé as there are penalties in the immigration law for individuals who file non-bona fide K-1 applications. If you are found at interview to have submitted such application, you would be ineligible for immigration under both K-1 and DV applications.
Q&A 3.
Adjustment of Status
I’m in the U.S. right now. I don’t want to go back to my country. I have family over here and my mother is an America citizen but she didn’t live in America long enough to get me citizenship. What can I do?
Attorney Lee answers:
If you are illegally in the country and entered the U. S. by December 31, 2011, you may be eligible for legalization if and when comprehensive immigration reform passes. If you overstayed a visa and did not enter by that date, you might still find some way to immigrate in the future like through bona fide marriage to a U. S. citizen. If you are here legally, you may be able to maintain legal status dependent on your circumstances through changing to another visa category such as F-1 student, H-1B specialized worker, H-3 trainee, etc. As your letter is slightly vague as to your circumstances, you should obtain a consultation with an immigration lawyer to go over all of your options.
Q&A 4.
Can I Travel Outside the US with an EAD Card and Re-enter?
Attorney Lee answers:
If you requested advance parole at the same time that you asked for employment authorization from U.S.C.I.S., you would be allowed to travel on the EAD card as it would contain authorizations for both employment authorization and advance parole. If you only requested employment authorization, the card would only give you authorization for work and not travel permission. In that case, you would not be allowed to travel under the EAD card.
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