Is he "Free to Marry" for 129f

[jess100 53]

Hi everyone

My fiance's divorce just became final in Mexico and we had planned to marry here in Mex (I am visiting) and start the spouse visa. However there is a state clause in the divorce papers that he must wait one year before remarrying. We checked several other states and were told essentially "you better just wait the year" although no one can explain exactly why, and it's not stated in those state codes.

So we are changing our plan, and will apply for the fiancé visa to avoid waiting an extra year. So my question is, Is he "free to marry" as required to file the 129 f? Or would we still need to wait one year for the Mexican law to finish? My understanding is we both must be free to marry at the time of application. I'm just not sure if Mexican law has and bearing on being "free to marry".

[Transborderwife 4,666]

What does his final divorce decree say? I wish that I had a concrete answer for you but I'm uncertain myself. Perhaps somebody in the regional forums could help?

[Maria4Garrett 5]

For me it would be fair enough to file for k1

[Zedayn 485]

Hi everyone

My fiance's divorce just became final in Mexico and we had planned to marry here in Mex (I am visiting) and start the spouse visa. However there is a state clause in the divorce papers that he must wait one year before remarrying. We checked several other states and were told essentially "you better just wait the year" although no one can explain exactly why, and it's not stated in those state codes.

So we are changing our plan, and will apply for the fiancé visa to avoid waiting an extra year. So my question is, Is he "free to marry" as required to file the 129 f? Or would we still need to wait one year for the Mexican law to finish? My understanding is we both must be free to marry at the time of application. I'm just not sure if Mexican law has and bearing on being "free to marry".

If it is already established in the divorce papers that he must wait a year before remarrying, then no he is not free to marry until that year has passed.

[Boiler 43,434]

If it is already established in the divorce papers that he must wait a year before remarrying, then no he is not free to marry until that year has passed.

As above

[rylforever 18]

As above

Hi Jess100, i agree with Zedayn and Boiler also. I was actually just wondering what state did he divorce in? I have just never heard of that being commonly stated in the divorce papers there.

[jess100 53]

Hi everyone

Thanks for all the input on this confusing situation. He divorced in the state of Oaxaca and it turns out this article stating a one year wait is in many (but not all) of the Mexican states. In some states it just applies to the woman and not the man-presumably to ensure she in not pregnant when she remarries. There is also a similar law in Texas.....so I assume some other US states might have something similar.

In any event the essence of the question is whether Mexican laws would apply in the US, which it turns out (in this case) they don't. I checked with a lawyer because I really couldn't make sense of it. That is, he is free to marry according to US standards. I hope this helps someone else in a similar situation. We were really surprised we could not get married in Mexico and had to alter our visa plans because of this.

Thanks again for everyone's help.

Jess

[KayDeeCee 4,891]

The problem I see is that you have to supply a copy of his divorce decree. Even if the I-129F petition gets approved, the CO in Juarez may see the waiting period clause and decide he is not free to marry for the K-1. This has been discussed here on VJ in the past, but there was never a definitive answer given and the posters never returned to state whether or not they were approved. http://www.visajourney.com/forums/topic/377106-1-year-waiting-period-after-divorce-mexico/

It seems as though the waiting period would only apply to getting another marriage license in Mexico, but who knows what the CO would decide. It has a little bit of a risk, but if you are willing to deal with that, then you could go ahead and see if you can get approved for the K-1.

[jess100 53]

Yes KayDeeCee I saw the same issue with the CO officer and the copy of the divorce. If he is NOT free to marry when we file the 129f then that would be a big problem at the interview. There was also a judge in Mexico willing to marry us but what good would that do if the CO officer determines we don't have a vaild and legal marriage. Surely getting married in Mexico before the one year wait would not be wise.

Thanks for pointing me to the older posts. I know this also came up on Immigrate2US without a final consensus.

That said, the lawyer has said he's free to marry according to US law and, although it's a risk as you said, I think we have to go for it.

Personally I don't see how Mexican or other foreign laws can be upheld in the US. I think that would open a can of worms that the US would never be able to settle. That said I'm surprised this question is still essentially unanswered-it seems like USCIS could give a definitive answer.

If I am able to get a concrete answer I will post it. I wrote a personal message to the last person who posted in VJ about it, asking what happened.

Jess

[Villanelle 4,121]

That said, the lawyer has said he's free to marry according to US law and, although it's a risk as you said,

Personally I don't see how Mexican or other foreign laws can be upheld in the US. I think that would open a can of worms that the US would never be able to settle.

That said I'm surprised this question is still essentially unanswered-it seems like USCIS could give a definitive answer.

eh. USCIS always has an answer somewhere.

The question that has never been asked has already been asked - because if the question has never been asked then it doesnt nor can it ever exist... ahhh

anyway.

USCIS does have special rules for determining if a marriage is valid for immigration purposes. (was the lawyer an immigration lawyer?) The US has this thing called reciprocity with countries. Which means what it sounds like. It honors other countries paperwork/ Means they trust that country is on the up and up with the seals and stamps and what not.

SO heres some key points about foreign divorces-

The validity of a divorce abroad​ depends on ​the ​interpretation of the divorce laws of the foreign country that granted the divorce and the reciprocity laws in the state of the United States where the applicant remarried.​ ^[11] If the divorce is not final under the foreign law, remarriage to a ​U.S.​ citizen is not valid for immigration purposes.​ ^[12] ​

So marrying when the divorce states you cant means USCIS is not going to recognize the marriage IF it occurs with in the year, OR if you apply for a 129F you would not be eligible since the free to marry is not eligible.

http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartG-Chapter2.html

[zinger143 3]

You should post a question on the country specific forum if Mexico requires them to provide a certificate of singlehood. If they do, then Mexico would not issue it for your fiancée and it's a moot point. If they don't require that certificate then it would be up to how the Mexican embassy would interpret those divorce papers. Ask in the country specific forum if anyone has had success emailing the embassy and getting answers. You could email the embassy and explain the US lawyer is saying the Mexican decree of waiting a year wouldn’t hold for US law and ask if they would also interpret it that way.

[gnaxtine 0]

I don't have specific experience with Mexico, but I have heard of this type of situation before. After my divorce from my first husband was finalised, I initially wanted to get married in Italy to my Italian fiance. However Italian law states that I physically could not get married there until 365 days have passed since my divorce. My fiance seemed to think it was of a "religious nature". However, I don't think this is necessarily relevant to the petition, because technically I am free to remarry (just not on location in Italy).

[jess100 53]

eh. USCIS always has an answer somewhere.

The question that has never been asked has already been asked - because if the question has never been asked then it doesnt nor can it ever exist... ahhh

anyway.

USCIS does have special rules for determining if a marriage is valid for immigration purposes. (was the lawyer an immigration lawyer?) The US has this thing called reciprocity with countries. Which means what it sounds like. It honors other countries paperwork/ Means they trust that country is on the up and up with the seals and stamps and what not.

SO heres some key points about foreign divorces-

The validity of a divorce abroad​ depends on ​the ​interpretation of the divorce laws of the foreign country that granted the divorce and the reciprocity laws in the state of the United States where the applicant remarried.​ ^[11] If the divorce is not final under the foreign law, remarriage to a ​U.S.​ citizen is not valid for immigration purposes.​ ^[12] ​

So marrying when the divorce states you cant means USCIS is not going to recognize the marriage IF it occurs with in the year, OR if you apply for a 129F you would not be eligible since the free to marry is not eligible.

http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartG-Chapter2.html

Damara,

Thank you so much for posting this. It's a big help-although I'm not sure I understand it completely. What's your take on it? He is "free to marry" (for the purpose of filing the fiance visa) with a vaild (and final) divorce from his state?

[Zedayn 485]

Damara,

Thank you so much for posting this. It's a big help-although I'm not sure I understand it completely. What's your take on it? He is "free to marry" (for the purpose of filing the fiance visa) with a vaild (and final) divorce from his state?

From the post earlier:

So marrying when the divorce states you cant means USCIS is not going to recognize the marriage IF it occurs with in the year, OR if you apply for a 129F you would not be eligible since the free to marry is not eligible.

USCIS will not recognize you as "legally free to marry" until one year has passed. In other words, he is not free to marry until one year past the date on his divorce decree.

[jess100 53]

I hope this helps someone else in our position. I just called USCIS customer service and explained our situation (divorced recently and decree from Mexico says he must wait one year to remarry) I asked if he is "free to marry" (at the time of application) for the purposes of a fiance visa. The agent said: "The United States will not follow the divorce requirements of any other country", and "we only require a copy of the divorce document". I asked the agent if this was written anywhere so I could refer others to it and she said it's not written anywhere but would be evident (my words) because they only ask for the divorce document to be submitted. So I asked once more if they follow the divorce requirements of Mexico, and she said, "no, and not for any other country".

I feel that this answers the question but also agree with a few other posters that the CO might not comply with it-

Anyone else with experience in this?

BTW calling them was not as painful as you might imagine and the agent was brief but polite.