Questions regarding I-130 for spouse of LPR

[JimVaPhuong 4,863]

@aron2020

Thanx for the explanation. It really does make sense from USCIS perspective. But my question again is

How and when do I have to prove that my prior marriage was bonafide and genuine. I mean process wise and document wise. OR

Should I just become a USC so that this thing does not apply to me. Please note that I want to file her I-130 so that she atleast gets in the line and then I can upgrade the application. Thats my whole point.

I knew my current wife ONLY after i got divorced and got my 10 year GC.

Thank you v much.

You have to prove it when you submit the petition. Otherwise, the petition cannot be approved. You are statutorily barred from filing a petition for a spouse if you remarried during that five year window, so you have to prove by "clear and convincing evidence" that the bar shouldn't apply to you. USCIS considers "clear and convincing evidence" to be substantially more compelling than the evidence normally required to approve a spousal visa petition. The kind of evidence you are expected to submit is described in 8 CFR section 204.2:

http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-12632/0-0-0-12725.html#0-0-0-10057

(B) Documentation. The petitioner should submit documents which cover the period of the prior marriage. The types of documents which may establish that the prior marriage was not entered into for the purpose of evading the immigration laws include, but are not limited to:

( 1 ) Documentation showing joint ownership of property;

( 2) A lease showing joint tenancy of a common residence;

( 3 ) Documentation showing commingling of financial resources;

( 4 ) Birth certificate(s) of child(ren) born to the petitioner and prior spouse;

( 5 ) Affidavits sworn to or affirmed by third parties having personal knowledge of the bona fides of the prior marital relationship (Each affidavit must contain the full name and address, date and place of birth of the person making the affidavit; his or her relationship, if any, to the petitioner, beneficiary or prior spouse; and complete information and details explaining how the person acquired his or her knowledge of the prior marriage. The affiant may be required to testify before an immigration officer a bout the information contained in the affidavit. Affidavits should be supported, if possible, by one or more types of documentary evidence listed in this paragraph.); or

( 6 ) Any other documentation which is relevant to establish that the prior marriage was not entered into in order to evade the immigration laws of the United States.

Here's the kicker...

(C

) The petitioner must establish by clear and convincing evidence that the prior marriage was not entered into for the purpose of evading the immigration laws. Failure to meet the "clear and convincing evidence" standard will result in the denial of the petition. Such a denial shall be without prejudice to the filing of a new petition once the petitioner has acquired five years of lawful permanent residence.

The director may choose to initiate deportation proceedings based upon information gained through the adjudication of the petition; however, failure to initiate such proceedings shall not establish that the petitioner's prior marriage was not entered into for the purpose of evading the immigration laws.

Unless the petition is approved, the beneficiary shall not be accorded a filing date within the meaning of section 203(c

) of the Act based upon any spousal second preference petition.

Did you catch that? They may conclude, based on the evidence (or lack thereof) submitted, that the previous marriage was likely entered into for the purpose of evading immigration law. That determination could result in you losing your permanent resident status and being deported. Be advised that a previously approved I-751 filed on the basis of divorce does not mean you've already cleared the hurdle of proving the marriage wasn't entered into for the purpose of evading immigration law. First, the standard of evidence required for approving an I-751 self-petition is "more likely than not", which is lower than "clear and convincing". Second, circumstances have changed considerably since you filed the I-751. You are now married again, and to a foreigner whom you intend to help immigrate. That substantially raises the bar of suspicion.

If you try and fail because you've simply failed to reach the "clear and convincing" threshold with your evidence then the petition will be denied without prejudice. If you try and fail because they conclude that the previous marriage was entered into in order to evade immigration law then you'll lose your green card and be deported.

If you are going to Apply AFTER the 5 year mark after you have obtained your resident status then, providing the evidence for B is not needed. If you will submit it now (before the 5 years.. then you will need to provide evidence... writing a letter etc.

This is not correct. The issue under 8 CFR 204.2 is NOT how long after the petitioner became an LPR through marriage that they ultimately submitted a petition for their new spouse, but how long after the petitioner became an LPR through marriage that they married the beneficiary of that new petition.

(A) A visa petition filed on behalf of an alien by a lawful permanent resident spouse may not be approved

if the marriage occurred within five years of the petitioner being accorded the status of lawful permanent resident based upon a prior marriage

to a United States citizen or alien lawfully admitted for permanent residence, unless...

As aaron pointed out, this issue doesn't go away no matter how long the OP waits. He's going to need a bona fide marriage exemption.

[iamwhatiam80 92]

@JimVaPhuong

Thank you for the response. Its kind of scary. I didnt knew about all these bars and laws before I got married.

Well what about the fact that A) Period of 5 years has elapsed since I gained my LPR.

So you are saying that I have to submit all the evidence even after 5 years have passed since i gained LPR status. I will have to talk to my lawyer then. I thought after 5 years I would not have to go through all this again.

Thanx.

You have to prove it when you submit the petition. Otherwise, the petition cannot be approved. You are statutorily barred from filing a petition for a spouse if you remarried during that five year window, so you have to prove by "clear and convincing evidence" that the bar shouldn't apply to you. USCIS considers "clear and convincing evidence" to be substantially more compelling than the evidence normally required to approve a spousal visa petition. The kind of evidence you are expected to submit is described in 8 CFR section 204.2:

http://www.uscis.gov...tml#0-0-0-10057

(B) Documentation. The petitioner should submit documents which cover the period of the prior marriage. The types of documents which may establish that the prior marriage was not entered into for the purpose of evading the immigration laws include, but are not limited to:

( 1 ) Documentation showing joint ownership of property;

( 2) A lease showing joint tenancy of a common residence;

( 3 ) Documentation showing commingling of financial resources;

( 4 ) Birth certificate(s) of child(ren) born to the petitioner and prior spouse;

( 5 ) Affidavits sworn to or affirmed by third parties having personal knowledge of the bona fides of the prior marital relationship (Each affidavit must contain the full name and address, date and place of birth of the person making the affidavit; his or her relationship, if any, to the petitioner, beneficiary or prior spouse; and complete information and details explaining how the person acquired his or her knowledge of the prior marriage. The affiant may be required to testify before an immigration officer a bout the information contained in the affidavit. Affidavits should be supported, if possible, by one or more types of documentary evidence listed in this paragraph.); or

( 6 ) Any other documentation which is relevant to establish that the prior marriage was not entered into in order to evade the immigration laws of the United States.

Here's the kicker...

© The petitioner must establish by clear and convincing evidence that the prior marriage was not entered into for the purpose of evading the immigration laws. Failure to meet the "clear and convincing evidence" standard will result in the denial of the petition. Such a denial shall be without prejudice to the filing of a new petition once the petitioner has acquired five years of lawful permanent residence.

The director may choose to initiate deportation proceedings based upon information gained through the adjudication of the petition; however, failure to initiate such proceedings shall not establish that the petitioner's prior marriage was not entered into for the purpose of evading the immigration laws.

Unless the petition is approved, the beneficiary shall not be accorded a filing date within the meaning of section 203© of the Act based upon any spousal second preference petition.

Did you catch that? They may conclude, based on the evidence (or lack thereof) submitted, that the previous marriage was likely entered into for the purpose of evading immigration law. That determination could result in you losing your permanent resident status and being deported. Be advised that a previously approved I-751 filed on the basis of divorce does not mean you've already cleared the hurdle of proving the marriage wasn't entered into for the purpose of evading immigration law. First, the standard of evidence required for approving an I-751 self-petition is "more likely than not", which is lower than "clear and convincing". Second, circumstances have changed considerably since you filed the I-751. You are now married again, and to a foreigner whom you intend to help immigrate. That substantially raises the bar of suspicion.

If you try and fail because you've simply failed to reach the "clear and convincing" threshold with your evidence then the petition will be denied without prejudice. If you try and fail because they conclude that the previous marriage was entered into in order to evade immigration law then you'll lose your green card and be deported.

This is not correct. The issue under 8 CFR 204.2 is NOT how long after the petitioner became an LPR through marriage that they ultimately submitted a petition for their new spouse, but how long after the petitioner became an LPR through marriage that they married the beneficiary of that new petition.

(A) A visa petition filed on behalf of an alien by a lawful permanent resident spouse may not be approved

if the marriage occurred within five years of the petitioner being accorded the status of lawful permanent resident based upon a prior marriage

to a United States citizen or alien lawfully admitted for permanent residence, unless...

As aaron pointed out, this issue doesn't go away no matter how long the OP waits. He's going to need a bona fide marriage exemption.

[iamwhatiam80 92]

@JimVaPhuong

The link that you provided was a clause amended in 1996. It does not mention point A on the I-130 form instruction which includes latest laws and regulations.

5. A husband or wife, if you gained lawful permanent resident status by virtue of a prior marriage to a U. S. citizen or lawful permanent resident, unless:

A. A period of five years has elapsed since you became a lawful permanent resident;

B. You can establish by clear and convincing evidence that the prior marriage through which you gained your immigrant status was not entered into for the purpose of evading any provision of the immigration laws; or

C. Your prior marriage through which you gained your immigrant status was terminated by the death of your former spouse.

So point A in simple words translates that after 5 years, I don't have to prove my prior marriage. The restriction is for people who want to petition before 5 years they gained LPR status.

@Ricardo3eva.

You are right in saying so.

@JimVaPhuong

Thank you for the response. Its kind of scary. I didnt knew about all these bars and laws before I got married.

Well what about the fact that A) Period of 5 years has elapsed since I gained my LPR.

So you are saying that I have to submit all the evidence even after 5 years have passed since i gained LPR status. I will have to talk to my lawyer then. I thought after 5 years I would not have to go through all this again.

Thanx.