Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight
delay between your follow ups and my replies.
I am very sorry for your situation. First of all, please understand the following:
A) The two-year conditional visa is made into a permanent greencard via the filing of the I-751, Petition to Remove the Conditions of Residence
and a subsequent hearing. The purpose of this is to determine that the marriage was indeed legitimate, and continued to be so after two years. Otherwise, one could simply get married, get a greencard, and quickly divorced.
B) If (1) the USCIS agent feels that the marriage was not actually legitimate after the interview, or, (2) if the I-751 is not filed after the two years are up, or (3) if there is a divorce filed or finalized before the I-751 is decided upon, then this increases the chances of the permanent greencard being denied
C) Child custody is based in the best interest of the child. This includes:
(1) The wishes of the child’s parent or parents, and any de facto custodian, as to his custody;
(2) The wishes of the child as to his custodian;
(3) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interests;
(4) The child’s adjustment to his home, school, and community;
(5) The mental and physical health of all individuals involved;
(6) Information, records, and evidence of domestic violence;
(7) The extent to which the child has been cared for, nurtured, and supported by any de facto custodian;
(8) The intent of the parent or parents in placing the child with a de facto custodian; and
(9) The circumstances under which the child was placed or allowed to remain in the custody of a de facto custodian...(Kentucky Statutes - Title 35 - Chapters: 403.270
Keeping all this in mind, it would be best for someone in your situation not
to pay for the I-751 filing, and deny signing off on it, thus making it extremely difficult for her to extend her visa into a greencard. This may be used as leverage against her for custody, or even actually done, so that her visa may be expired and then she would have to leave USA.
At the same time as filing for divorce, one could request temporary orders for custody and also seek an injunction/protection from her leaving the country with the child to avoid flight.
Ergo, one in your situation should not pay for it, and at the same time, may wish to file for divorce (and temporary custody while the divorce is pending) now.
I hope this helps and clarifies. Best of luck.
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