GC by marrying USC - Divorced and now filing i-130 for new spouse

[shonkho2008]

Hi Friends,
My name is Atul and I am a resident of Spartanburg SC. I received my LPR status via marriage to a USC in 05/2006. We got married on 03/2003. I subsequently went through the AOS process and became a perm resident from 05/2006 onwards. We go divorced on 01/2007.

I then re-married on 06/2007 (my new wife is canadian) and now she's with me in the US as a tourist (legal entry).
I am planning to file I-130 for her using the following category on I-130 Form:

3. For Whom May You Not File?
You may not file for a person in the following categories:

E. A husband or wife, if you gained lawful permanent resident status by virtue of a prior marriage to a United States citizen or lawful permanent resident, unless:

(2) You can establish by clear and convincing evidence that the prior marriage through which you gained yourimmigrant status was not entered into for the purpose of evading any provision of the immigration laws;

My first question is :
Apart from the usual paperwork, what additonal documentation would I need to furnish to prove that previous marriage was bonafide. Should I include joint balances, accounts, tax, insurance etc etc, all of which was presented during my AOS interview or should I just wait for 4-5 years until interview comes up.

On what basis should USCIS decide that marriage was bonafide and give a receipt number to my wife ?

My second question is :
Also I understand that i-130 is a long process and my wife has to wait 4-5 years before approval (she wont be able to work/travel in the interim as well). My wife is a registered RN in Canada and would be able to re-enter the US on TN visa after probably an year. Should TN be a better option for her to get to her Perm Resident application eventually ? As I heard that USCIS views marriages to USC for less than 5 years with lots of suspicion.

Any inputs/suggestions/comments is highly appreciated. We did visit the local USCIS office in Greer and the Immigration information officer mentioned us that a letter from previous spouse to file alongwith the i-130 should suffice for now. However, I wasn't very convinced with her answer.

Thanks
Atul

 

[LucyMO]

Should TN be a better option for her to get to her Perm Resident application eventually ?

TN is a non-immigrant visa.

As I heard that USCIS views marriages to USC for less than 5 years with lots of suspicion.

not really, but in your case it'll be suspicious because of your marrying and remarrying within such a short time period.

 

[boatbod]

If I were an adjudicating officer, this sort of story would be just the thing to make my nose itch. Put yourself in USCIS shoes, and ask yourself what sort of evidence would show your first marriage was genuine.

Maybe:
- mortgage/lease/rental/car payments in joint names
- joint bank accounts
- copies of personal letters
- photos (maybe less so these days due to Photoshop?)
- affidavits from friends/family members
- ???

 

[shonkho2008]

Thanks a bunch Lucy....
What I meant was procuring a TN Visa first and then have her employer file the i-140 blah blah....If i-130 is denied, TN would be our only resort.....I still have a good 3 years before I can even apply for citizenship.

Yes, even though I was married to my ex for 3.5 years, it might still arise suspicion about the marriage thingy, especially since I re-married within 5 months of the divorce.

What would you do if u were me ? File i-130 and wait for a favorable uscis response or not to jeopardize uscis knowing her immigration intent and allow her to get back to canada and re-enter (even if it entails an years worth of wait) the US on a TN ?

I understand if i-130 is denied, re-entering US on a tourist visa could be difficult and same would apply to procure a TN visa as well. Correct me if I am wrong.

Thanks
Atul

 

[shonkho2008]

If I were an adjudicating officer, this sort of story would be just the thing to make my nose itch. Put yourself in USCIS shoes, and ask yourself what sort of evidence would show your first marriage was genuine.

Maybe:
- mortgage/lease/rental/car payments in joint names
- joint bank accounts
- copies of personal letters
- photos (maybe less so these days due to Photoshop?)
- affidavits from friends/family members
- ???
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I presented the above documents you mentioned during my AOS interview. Would same evidences still be valid ?
Instructions on Form I-130 clearly states : establish by clear and convincing evidence
I won't mind mailing-in all documention required. I can also get a letter from my ex mentioning that our marriage was entered into in good faith etc etc and get it notorized.... Question is what does USCIS mean by "establish by clear and convincing evidence".

Atul

 

[GotPR?]

I don't understand why you want to file I-130 in the first place.

She has to wait more than 5 years to get GC as spouse of LPR.
You'll be USC within 5 years.
IR of USC has PD current all the time.
I-130 makes it difficult to get non-immigrant visa.
She has an option to go with I-140.

 

[shonkho2008]

Well,
the only reason I am looking to file I-130 is for us to stay together. She's got rid of whatever she's got in Canada and moved to USA to stay with me late last year. We're also okay with her not working/travelling until those 4-5 years as long as she's with me...One more point, i forgot to mention that we had a son together last year, who's also with us...

She's waiting on her papers from nursing board to appear for her NCLEX, the wait for which is indefinite. With such uncertaintly, I dont her and my son to head back to canada and god knows when she'd be able to return on her TN.

If odds are favorable, I'd still stick with i-130. But i am trying to determine if her i-130 has a chance to be denied, given my situation. Another point that worries me is that if her i-130 is approved within an year or two, she would be out of status for another 2-3 years before I can file i-485. In that case, I would be jeopardizing even her TN at that point..

Based on the above,do you still think TN is the way to go ? Sorry, I am just trying to weigh all the options and educate myself on all of them.

Thanks
Atul

 

[GotPR?]

Well,
the only reason I am looking to file I-130 is for us to stay together. She's got rid of whatever she's got in Canada and moved to USA to stay with me late last year. We're also okay with her not working/travelling until those 4-5 years as long as she's with me...One more point, i forgot to mention that we had a son together last year, who's also with us...

She's waiting on her papers from nursing board to appear for her NCLEX, the wait for which is indefinite. With such uncertaintly, I dont her and my son to head back to canada and god knows when she'd be able to return on her TN.

If odds are favorable, I'd still stick with i-130. But i am trying to determine if her i-130 has a chance to be denied, given my situation. Another point that worries me is that if her i-130 is approved within an year or two, she would be out of status for another 2-3 years before I can file i-485. In that case, I would be jeopardizing even her TN at that point..

Based on the above,do you still think TN is the way to go ? Sorry, I am just trying to weigh all the options and educate myself on all of them.

Thanks
Atul

I-130 filing does not give her the authorized stay. TN w/o I-130 is good enough to stay in the US and no need to worry about extension after I-130 filing.

Unless you have concern that your citizenship will be denied, filing I-130 now does nothing good.

 

[boatbod]

I presented the above documents you mentioned during my AOS interview. Would same evidences still be valid ?
Instructions on Form I-130 clearly states : establish by clear and convincing evidence
I won't mind mailing-in all documention required. I can also get a letter from my ex mentioning that our marriage was entered into in good faith etc etc and get it notorized.... Question is what does USCIS mean by "establish by clear and convincing evidence".

Atul

I don't think it'll hurt to present the same evidence again, however maybe you have more that came about after you were approved for GC, but prior to your divorce? The "clear and convincing evidence" clause is likely purposefully vague so that it gives the IO discretion to adjudicate based on his overall view of your case.

 

[Triple Citizen]

I would not advise you to file an I-130. That move will diminish your wife's chances of getting (and re-newing) TN status. You have to tread carefully. You divorced a US citizen (who got you your GC) and married an non-US citizen within 5 months. In the worst case scenario, USCIS may think that you had this planned right from the start in order to get yourself and your non-US citizen wife GCs.

What would you do if u were me ?

 

[LucyMO]

I agree with Real Canadian and GotPR. Do not file I-130. It will be difficult for her to get TN as it is (being married to a USC), and with a filed I-130 it will be pretty much impossible. Plus, I-130 will not provide her with any status. It simply establishes a relationship which makes you eligible to apply for a GC later.