Very bizarre case of Adj of Status-Marriage to US Citizen

[me2]

Came to US in December 2000 on F1 Student Visa to complete a six month graduate course.
On April 2001 completed course
On May 2001 married my current wife (US Citizen)
On June 2001 applied for adjustment of status for permanent residency
On March 2003 was interviewed for adjustment of status, and was asked to return a year later for stokes interview.
On March 2004 returned for stokes interview and was told a decision would be made two weeks later.
Today is June 2004 (Exactly 3 years after I filed for adjustment of status and no word yet.

I have not traveled outside US since my arrival in 2000, although I had an Advance Parole document.

Questions:
After I finished my graduate course in 2001 and got married, I stopped studying, waited 90 days for work authorization and have been working ever since. I know I am in the last stages of adjustment of status, but my marriage is not working out and my wife and I want to divorce.
1. Could I get divorced, return to study, get an I-20 and change my status back to student? (My student visa is still valid until Late 2005). Do I need a new visa? Do I need to leave the country and re-enter as a student?
2. If I get divorced, and I know a divorce takes some months to finalize, if adjustment of status were to take place, would the divorce affect my ability to receive a green card.
3. Getting a Green Card is not absolutely vital to me. What is vital to me is my ability to re-enter the US in the future. The country I am from takes 2 years to issue a US B1/B2 visa. Could I get divorced, withdraw my adjustment of status application at INS, use my Canadian visa to enter Canada as a tourist and obtain a B1/B2 visa at a Canadian consulate.

Due to the fact INS is likely to deny my adjustment of status, would it be safe to withdraw my application before I get a negative response and find other routes of migration or simply leave this country for good?

What is the general rule for Aliens who divorce before an adjustment of status is made??? Do I have to leave?? Am i protected in any way after more than 3 years of marriage to a US Citizen??

[Cosmopol]

Due to the fact INS is likely to deny my adjustment of status, would it be safe to withdraw my application before I get a negative response and find other routes of migration or simply leave this country for good?

In the light of this understanding you have (not sure what are the reasons, but trust you have them) I would probably withdraw the application to insure "good terms" with the system. However, in your gase there are few "general" rules, if any - as one bureaucrat once said to me, "in such cases there are no rules, only exceptions".

I hate to sound trivial or seem like I deflect the answer, but it's highly recommendable to get a lawyer for this to sort things out in the best way.

In addition, I believe your F-1, while still valid technically, has the name of the institution spelled out on it, and so is valid for that course of study only. More than likely you'd need to leave the States and get a new one if you were to follow that route. I also don't believe it's any longer possible to get your B1/B2 in Canada or other countries where you are not resident.

As for any benefits deriving from a 3-year marriage - formally speaking, I know of options for those who adjusted status to conditional PR, and then divorce before the removal of conditional status, which is not your case. Since your status wasn't adjusted in the first place, I can hardly see any further relief once you are divorced. Please consider your steps wisely, and hopefully you'll do it with a lawyer.

Best of luck.

[Kayalami]

me2,

I am sorry to hear that your marriage is not working out. The delays in your AOS appear to be a combination of:

1. The stokes interview - greater scrutiny by BCIS due to IMHO the potential of marriage fraud. You got married 5 months after entering the US and at the completion of your postgraduate course.

2. The ever increasing AOS process times at all service centres especially Texas where there was a 3 year backlog. Did you file through Texas by any chance?

In response to your Q's:

Could I get divorced, return to study, get an I-20 and change my status back to student? (My student visa is still valid until Late 2005). Do I need a new visa? Do I need to leave the country and re-enter as a student?

I agree with Cosmopol that on a technical basis your F1 Visa is valid but would be linked to an I-20 for a specific institution/ programme. If you were changing courses/ institution then it would be less of an issue but given your lengthy absence from education it may be that a new SEVIS based I-20 must be submitted. However your challenge here is that F1 status is non-immigrant given your immigrant intent/ history - see my comments on B1/B2.

If I get divorced, and I know a divorce takes some months to finalize, if adjustment of status were to take place, would the divorce affect my ability to receive a green card.

If your AOS is completed before the divorce then your status as a LPR is intact irrespective of a divorce later on. Given that you have been married for more than two years you will not be given conditional PR. Divorce pre AOS completion nullifies the process as you are no longer an eligible beneficiary for any immigration benefits. You are looking at criminal proceedings for fraud/ misrepresentation with corresponding bars from the US if BCIS approved your AOS while you were divorced and they were not aware/ notified of this.

Getting a Green Card is not absolutely vital to me. What is vital to me is my ability to re-enter the US in the future. The country I am from takes 2 years to issue a US B1/B2 visa. Could I get divorced, withdraw my adjustment of status application at INS, use my Canadian visa to enter Canada as a tourist and obtain a B1/B2 visa at a Canadian consulate.

IMHO your chances of getting any non immigrant visa irrespective of where you apply including Canada such as the B1/B2 are practically nil given that you have already demonstrated immigrant intent through the AOS process. In any case IMHO you will not get the B1/B2 before you withdraw the AOS application and are divorced. Furthermore non immigrant visas require you to demonstrate ties to a country outside the US that you have no intention of abandoning. You have been in the US since 2000 - this is where you work, it is where your wife is despite the problems you have, presumably where you have property etc i.e. it is where your strongest ties are.

Due to the fact INS is likely to deny my adjustment of status, would it be safe to withdraw my application before I get a negative response and find other routes of migration or simply leave this country for good?

What is the general rule for Aliens who divorce before an adjustment of status is made??? Do I have to leave?? Am i protected in any way after more than 3 years of marriage to a US Citizen??

You can self petition for AOS under the Under the Violence Against Women Act (VAWA) passed by Congress in 1994 which allows the spouses and/or children of USC and LPR to adjust status where there are issues of battering/ abuse if this is applicable in your case. Note that abuse here can be mental and/ or physical and despite the wording of the Act it applies to both male and female spouses. You must petition while you are still married although I believe there were some amendments to the act last fall to allow divorced applicants petition too. You would need to demonstrate that your marriage was entered into in good faith - given the stokes interview this an area you would have to address in some detail.

Another option (if all else fails) available to you is to seek a dual intent employment visa/ status e.g. H1 but note the quotas are used up for this Fiscal Year.

I would advise you to not leave the US until the matter is resolved notwithstanding the AP document you hold. You need to get a lawyer for this one - its a very complex matter and there is no room for error.