Once again, I need some help

Pam_Doleo

Registered Users (C)
Hello everyone.

I was married to a USC from who I obtained my green card. About 11 months ago we divorced bc our relationship was going nowhere. Next summer I will apply for my citizenship on my own. Since my divorce I've been dating someone that I would love to marry but he's here ilegal. If we get marry I'll apply for his GC. Should I request the GC me being only a PR or shoul I wait until I become a USC (all this, of course, after we marry)

Thx, Pam :)
 
Pam,
you will not be able to file for your current fiance unless 5 years have passed since your previous marriage to USC spouse. If 5 years have passed and you decide to file for him currently, I-130 is all you can file and that won't give him any kind of legal status at all and all chances of denial is pretty high with him being illegal. Also processing time, if I-130 is accepted by USCIS will be close to an year.

Your best bet is to wait until you become an USC and then file AOS (I-130 + I-485 together) for your illegal fiance.

HTH
Atul

Hello everyone.

I was married to a USC from who I obtained my green card. About 11 months ago we divorced bc our relationship was going nowhere. Next summer I will apply for my citizenship on my own. Since my divorce I've been dating someone that I would love to marry but he's here ilegal. If we get marry I'll apply for his GC. Should I request the GC me being only a PR or shoul I wait until I become a USC (all this, of course, after we marry)

Thx, Pam :)
 
Hello everyone.

I was married to a USC from who I obtained my green card. About 11 months ago we divorced bc our relationship was going nowhere. Next summer I will apply for my citizenship on my own. Since my divorce I've been dating someone that I would love to marry but he's here ilegal. If we get marry I'll apply for his GC. Should I request the GC me being only a PR or shoul I wait until I become a USC (all this, of course, after we marry)

Thx, Pam :)

What's your residence since date?

As for your illegal fiance, HOW do you mean illegal? Is he an "overstay" on a visa? A Visa Waiver overstay? OR did he enter illegally without inspection? Also, when did he enter and did you know him BEFORE your marriage to a USC?
 
Since my divorce I've been dating someone that I would love to marry but he's here ilegal. If we get marry I'll apply for his GC.

Did he enter the US legally or illegally? If he entered legally, did he use the visa waiver program? His method of entry may disqualify him from getting a GC even if you become a USC.
 
Did he enter the US legally or illegally? If he entered legally, did he use the visa waiver program? His method of entry may disqualify him from getting a GC even if you become a USC.

Hi, he entered with Visa and overstayed.
I obtained my green card in Nov 2007 :)
 
I obtained my green card in Nov 2007 :)

That means you can't file for him before Nov 2012, because of the mandatory 5-year waiting period. And you can't become a USC before Nov 2012, most likely early 2013 since processing slows down a bit in the Nov/December holiday season. If you're going to marry him before becoming a USC you'll have to seriously think about the risks of marrying somebody who can get deported at any random time in the next 16 months or so.
 
It's just not that simple

The petitioning prohibition is ONLY against F2A spouses and it is not an absolute prohibition as it may be overcome with evidence of bona fide first marriage or if widowed.


INA 204 PROCEDURE FOR GRANTING IMMIGRANT VISAS

(a)

(2) (A) The Attorney General [now USCIS] may not approve a spousal second preference petition for the classification of the spouse of an alien if the alien, by virtue of a prior marriage, has been accorded the status of an alien lawfully admitted for permanent residence as the spouse of a citizen of the United States or as the spouse of an alien lawfully admitted for permanent residence, unless-

(i) a period of 5 years has elapsed after the date the alien acquired the status of an alien lawfully admitted for permanent residence, or

(ii) the alien establishes to the satisfaction of the Attorney General by clear and convincing evidence that the prior marriage (on the basis of which the alien obtained the status of an alien lawfully admitted for permanent residence) was not entered into for the purpose of evading any provision of the immigration laws.

In this subparagraph, the term "spousal second preference petition" refers to a petition, seeking preference status under section 203(a)(2) , for an alien as a spouse of an alien lawfully admitted for permanent residence.

(B) Subparagraph (A) shall not apply to a petition filed for the classification of the spouse of an alien if the prior marriage of the alien was terminated by the death of his or her spouse.
 
The petitioning prohibition is ONLY against F2A spouses and it is not an absolute prohibition as it may be overcome with evidence of bona fide first marriage or if widowed.


Those who obtained their green cards via marriage to a USC are also restricted by the 5-year waiting period, not just F2A spouses. And the OP's marriage ended in divorce, so the widow exception doesn't apply. So that leaves only the option to provide "clear and convincing" evidence of a bona fide marriage, which is not a trivial task especially if it's barely a 3-year marriage without children (OP didn't mention children or lack thereof or length of the marriage, so I'm using "if").

But for all practical purposes the 5 year wait specified by that section of the law is moot, since the OP can't obtain citizenship before 5 years anyway and her future spouse can't apply to adjust status before she becomes a USC.

INA said:
(2) (A) The Attorney General [now USCIS] may not approve a spousal second preference petition for the classification of the spouse of an alien if the alien, by virtue of a prior marriage, has been accorded the status of an alien lawfully admitted for permanent residence as the spouse of a citizen of the United States or as the spouse of an alien lawfully admitted for permanent residence, unless-
 
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Those who obtained their green cards via marriage to a USC are also restricted by the 5-year waiting period, not just F2A spouses. And the OP's marriage ended in divorce, so the widow exception doesn't apply. So that leaves only the option to provide "clear and convincing" evidence of a bona fide marriage, which is not a trivial task especially if it's barely a 3-year marriage without children (OP didn't mention children or lack thereof or length of the marriage, so I'm using "if").

But for all practical purposes the 5 year wait specified by that section of the law is moot, since the OP can't obtain citizenship before 5 years anyway and her future spouse can't apply to adjust status before she becomes a USC.

Maybe I did not make it clear in my prior post, for that I beg pardon.

The prohibition is based on the type of I-130 being filed now.

If an LPR got their LPR status as a spouse of a USC or LPR then (s)he cannot file an I-130 as an LPR for a new alien spouse (that would be an F2A I-130 spousal petition) UNLESS,

(s)he naturalizes because (s)he will be filing an IR petition as a USC petitioner, OR
is widowed from the USC who petitioner for him/her, OR
the LPR proves the bona fides of his or her own greencard marriage, OR
5 years has passed since the LPR got his/her initial LPR status through marriage to an LPR or USC.


This statutory change was made to guard against something that was happening but was found out.

LPRs were immigrating through marriage and then staging fraud divorces and marrying their former brothers-in-law or sisters-in-law (sometimes cousins too), immigrating them, divorcing again, and then re-marrying their REAL spouses whom they NEVER stopped living with during the temporary fraud marriages.


Flatly stating that one is not allowed to file a spousal petition for 5 years is incomplete information.
 
Thank you All

I must thank you all for giving me all this info.

I will not file a petition for him until I become an USC and that will be in Nov 12.
Once again, thank you for all of the info.
 
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