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Ely, Counselor at Law
Category: Immigration Law
Satisfied Customers: 102505
Experience:  Private practice in several areas, including immigration
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I have been married to a Peruvian woman since 10/15/2010.

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I have been married to a Peruvian woman since 10/15/2010. We now have an 11 month old son. She is due to make her conditional permanent resident card into a permanent resident card before Sept. 6th. I am wanting to get a divorce as we just cannot co-habitat together for over 2 years without extreme disagreements. What are my chances of getting a divorce now and trying to get full custody of my son and send her back to Peru? The USCIS wants $525 to make her a permanent resident. Should I go ahead and pay it for her or not?
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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Customer: replied 4 years ago.

Living in Frankfort, KY. Is it best to find a lawyer in Frankfort or go outside of this area and get someone who is better at Immigration law? I do not think the lawyers know too much about immigration law but would probably know the judges who would make the decision better than someone outside of Frankfort.


Thank you for your follow up.

Is it best to find a lawyer in Frankfort or go outside of this area and get someone who is better at Immigration law?

If you plan to pursue divorce, you need someone who is local, or at least KY-based. May I recommend the KY Bar referral program - here. The attorneys are vetted and qualified. You should be able to find an attorney you are confident with and whom you can trust, and who is available ASAP. It is best to find an attorney who knows BOTH immigration and family law. Many family law attorneys will know at least the basic immigration outlines; but I cannot say the same the other way around (most immigration attorneys are focused solely on immigration). So it is best to find a local family law attorney with some basic knowledge of immigration, at least.

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Customer: replied 4 years ago.
While I was at work yesterday, my wife had immigration, I think, come in and assist her in relocating somewhere else. This happened about 11 am est. She has taken all her belongings and also my 11 month old son. She is from Peru and is definately a flight risk back to Peru. I informed her I was contacting a lawyer to see about getting a divorce and I guess this has sent her over the edge. The neighbors report that are large brown car with alot of antennas and another white car showed up and took them. There were two men and a women dressed in nice clothes they said. I am beside myself with worry and want to know if there is any way she can get them on a plane to Peru this quickly. My son does have a passport, but it is in my possession. I have called immigration but no answers as all are out for the 4th. What do I do?

Thank you for your follow up. USCIS would not assist an individual with relocation. So it likely was not them.

What do I do?

1) Contact an attorney;
2) File for custody (with or without divorce) and ask for an emergency order that is heard on the day of filing that asks that she not be allowed to leave the country;
3) Get that order;
4) Send it to the international airport in your area so she is flagged and would be stopped if she tries to leave;
5) Continue on with the custody matter (your attorney can utilize someone to help find her and the child).

Since this is July 4th, the Courts are closed, and may be closed tomorrow as well where you are. However, because she would likely need visas/passports for the children and/or a ticket (and this time, everything is full), you likely have a few days and can do this Monday... but should do this ASAP.