Discussion:
I came to this country on J1 visa in 2003, got married to a USC for more than a year, our marriage didn't work out. The AOS was denied because at the time of the interview we lived already separated. My ex filed for an appeal though, trying to save our relationship, but we got divorced eventually after couple months. I haven't heard from INS since then(about a year), because I moved out of state and DID NOT notify them about new address.
I live with somebody new now, who is also a USC, and we are ready to get married and file again for AOS.
How can I find out if the appeal with the BIS is still pending, or if any removal/deportation proceeding have already started or there's maybe a final order ?
Does anyone know about the INS Arthur Rule, that says that the new wedding has to be done before the deportation proceedings have commenced? Otherwise the new pending visa application will not be approved?
Will the first application have to do anything with the new one? What is to be expected?
Your help is greatly appreciated! Thank you.
Answer:
Originally Posted by Altec I came to this country on J1 visa in 2003, got married to a USC for more than a year, our marriage didn't work out. The AOS was denied because at the time of the interview we lived already separated. My ex filed for an appeal though, trying to save our relationship, but we got divorced eventually after couple months. I haven't heard from INS since then(about a year), because I moved out of state and DID NOT notify them about new address.
I live with somebody new now, who is also a USC, and we are ready to get married and file again for AOS.
How can I find out if the appeal with the BIS is still pending, or if any removal/deportation proceeding have already started or there's maybe a final order ?
Does anyone know about the INS Arthur Rule, that says that the new wedding has to be done before the deportation proceedings have commenced? Otherwise the new pending visa application will not be approved?
Will the first application have to do anything with the new one? What is to be expected?
Your help is greatly appreciated! Thank you.
If you dont already have an attorney, you need one.
Although you were separated , you could still have been approved so I'm going to guess that there was a 'sham marriage" finding. If thats so , unless that decision is reversed on appeal you will never be able to adjust your status. If your appeal is still pending, then the old decision (sham marraige) is the prevailing deciison which means you can't file another OAS application. To find out if its still pending with the BIA, call and give the case number or do a FOIA request.......but that will tak eyou at least several months to get a response. A Sham marraige finding and filing a frivolous asylum application are two of, if not the most severe findings one could have against them.
The way I understand it, the Arthur rule does not really say that the marraige has to be before the removal proceedings begin. My understanding of the rule is that if you marry whilst in proceedings, the I-130 petition cannot be approved until you have lived outside the US for 2 years unless you can establish by clear and convincing evidence that th emarraige was entered into with good faith......however it wouldnt help you because you already have a sham marraige finding, so that obstacle would have to be overcome first. The Arthur rule would be relevant to someone, who say for example, overtasyed their visa, have removal proceedings commenced against them and then get married. In that instance the only thing they would have to prove, to avoid application of the Arthur rule, is that the marraige wasn't done to avoid deportation. You, on the other hand would have to over come (1) that yourr pevious marraige was not a fraud (2) this one isnt a fraud either.
Answer:
I would assume if they found a "sham marriage" decision againist him that him and his ex would have been notified? Is this not true?
Answer:
Originally Posted by kiddhan625 I would assume if they found a "sham marriage" decision againist him that him and his ex would have been notified? Is this not true?
Well yes, and he did say that his ex filed an appeal. I assume that's what she was appealing. Also in a 'sham marraige" finding, its the petitioner ( The USC spouse) who bears the burden of proving that it is in fact a bona fide marriage, which is one of the main reasons why its so hard to overcome.
Answer:
Thank you for replying so fast.
My 1st AOS was denied solely because at the time of the interview, me and my ex were living separately, far from each other. The fact that she and me were not living together at the time of the visa petition denial is not evidence of a fraudulent marriage. See Tawfik, supra, at 169. We did enter the marriage in good faith, even though it turned out to be a short marriage.
If my new petition based on the 2nd marriage is summarily denied because of the first petition, can it be appealed thru BIA with a favorable outcome? ( there's no substantial and probative evidence to satisfy the standards set forth in case law and in statutes that the 1st marriage was a "fraud marriage" ---just because we were not living at the same address at the time of the AOS interview??)
Anyone who knows a good attorney in this kind of cases?
Thanks again kindly!
Answer:
Originally Posted by Altec Thank you for replying so fast.
My 1st AOS was denied solely because at the time of the interview, me and my ex were living separately, far from each other. The fact that she and me were not living together at the time of the visa petition denial is not evidence of a fraudulent marriage. See Tawfik, supra, at 169. We did enter the marriage in good faith, even though it turned out to be a short marriage.
If my new petition based on the 2nd marriage is summarily denied because of the first petition, can it be appealed thru BIA with a favorable outcome? ( there's no substantial and probative evidence to satisfy the standards set forth in case law and in statutes that the 1st marriage was a "fraud marriage" ---just because we were not living at the same address at the time of the AOS interview??)
Anyone who knows a good attorney in this kind of cases?
Thanks again kindly!
I only guessed that it was a "sham marraige' finding because you didnt provide any information to the contrary.
Your second petition would not be summarily dismissed if there was no prior finding of fraud and as far as I know youre not precluded from filing another petition. However what exactly does the denial notice says? You say it was denied solely because you were not living together..........that by itself, witout any other adverse evidence, is usually not enough to deny the petition. But anyway, I see no reason why you couldnt proceed with a new petition.