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elicearea

Need some advise, please

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Hi everyone. I need some guidance from someone who had been in a situation similar to ours but first let me tell you shortly as I can our story and what we stumbled upon. My husband is an LPR since 2007, he gain his status through marriage to an LPR who became US citizen. They were married for ten years, had three children. It was a difficult marriage, lots of problems and tragedy. His ex wife is a terrible person who caused him a lot of pain and suffering. He lost a child because of a "relationship" that she had prior to their divorce, lost the house, everything... I don't want to disclose more because I don't want to cause more pain to my husband. After the divorce in 2010 he was granted primary custody of the children. We got married this June and now we are preparing to send the I-130 packet to USCIS...but, in the I-130 form instructions says that he cannot file for his wife unless 5 years have elapsed since he became LPR or he can prove by clear and convincing evidence that his previous marriage was not entered for the purpose of evading immigration law. We have no idea what kind of "clear and convincing evidence to submit", so if you have any suggestions, or you've been in this situation, please, feel free to comment and give some of your wisdom :help:. Thank you so much for your input, guys, I really need you help.


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Approved 12.18.2012!! (after 13 months and 4 days)

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The limit is an attempt to prevent fraud. The length of the prious marriage works to your favor, it wasn't get married and immigrate then leave, is there any documentation of the "issues" in the last marriage ? It would show that he tried to stay but that he was driven out by the conditions he was living with. Having custody could be a plus, he didn't marry and walk away a single man with no responsibilites.


This will not be over quickly. You will not enjoy this.

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The limit is an attempt to prevent fraud. The length of the prious marriage works to your favor, it wasn't get married and immigrate then leave, is there any documentation of the "issues" in the last marriage ? It would show that he tried to stay but that he was driven out by the conditions he was living with. Having custody could be a plus, he didn't marry and walk away a single man with no responsibilites.

well, they he filed for a no fault divorce because he wanted it to be over fairly quickly...his ex wife is not a reasonable person and it would have been much more difficult to obtain the divorce faster if it was more litigation that it already has been. he really wanted to have custody of the kids because his little girl died while in the care of his ex-wife who left her with her boyfriend. they were separated when this had happen.. and she wouldn't allow him to take the kids, he wasn't able to see them and have them because she didn't let him. all the documentation of their house, children's birth certificates, social security and such were kept by her, and won't give them to him. she wanted him trapped, didn't want to divorce him even though so much had happen so it was a terrible experience to go through...So if your asking if he had caught her in the act of cheating and prove it, no, other than that what happen with his daughter. He knew she was cheating but doesn't have proof. as for her financial recklessness, she ruined his credit, spent all his money, got him deeply in debt throughout their marriage, she handled the papers, it might have been fraud involved also, but he cannot get those papers to prove it. it was a really difficult situation he was in and other than custody papers and marriage certificate to show the length of the marriage we don't have much...


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Approved 12.18.2012!! (after 13 months and 4 days)

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You said he was married for ten years to an LPR who became a US citizen, yet he became an LPR in 2007. What was his status before he adjusted? Did he marry in the US, and had he been in the US the entire time? Had he been out of status for a long time, and then adjusted status when his wife became a US citizen? Was any petition submitted for him before that, when his wife was an LPR?

The "clear and convincing evidence" requirement substantially raises the bar. In fact, the law states flat out that he can't petition for a spouse within five years of obtaining his LPR status based on a prior marriage, but then goes on to carve out an exception for a "bona fide marriage". This is the same threshold that must be met if an applicant marries while in removal proceedings. USCIS begins with the presumption that the marriage is a sham. What makes it tougher is that the presumption is that the previous marriage was a sham. In your case, the presumption would be that he married his previous wife so that he could get legal status and subsequently help you to immigrate. You need to convince USCIS that this was not the plan.

Basically, your burden of proof is more than doubled. He has to not only provide sufficient evidence that his current marriage to you is bona fide, he has to provide clear and convincing evidence that his previous marriage was bona fide. Examples of the sort of evidence he'll need includes:

1. Proof of joint ownership of property.

2. Proof of joint tenancy.

3. Proof of comingling of finances.

4. Birth certificates of children born to him and previous wife.

5. Sworn affidavits from people who have first-hand knowledge of the marital relationship.

6. Any other documentation or evidence that helps paint a picture of a genuine marriage.

He'll also need to include a written request for an exemption from 8 CFR 204.2(a)(1)(i)(A).

The good news is that if the exemption is denied there is usually no presumption that the previous marriage actually was entered into for the purpose of evading immigration law. Rather, the denial is usually "without prejudice", and simply because the petitioner failed to provide sufficient evidence to prove they qualified for the exemption. The petitioner can usually resubmit when the five year minimum period has expired.

BTW, he can request certified copies of the children's birth certificates from the state's custodian of records.


12/15/2009 - K1 Visa Interview - APPROVED!

12/29/2009 - Married in Oakland, CA!

08/18/2010 - AOS Interview - APPROVED!

05/01/2013 - Removal of Conditions - APPROVED!

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You said he was married for ten years to an LPR who became a US citizen, yet he became an LPR in 2007. What was his status before he adjusted? Did he marry in the US, and had he been in the US the entire time? Had he been out of status for a long time, and then adjusted status when his wife became a US citizen? Was any petition submitted for him before that, when his wife was an LPR?

The "clear and convincing evidence" requirement substantially raises the bar. In fact, the law states flat out that he can't petition for a spouse within five years of obtaining his LPR status based on a prior marriage, but then goes on to carve out an exception for a "bona fide marriage". This is the same threshold that must be met if an applicant marries while in removal proceedings. USCIS begins with the presumption that the marriage is a sham. What makes it tougher is that the presumption is that the previous marriage was a sham. In your case, the presumption would be that he married his previous wife so that he could get legal status and subsequently help you to immigrate. You need to convince USCIS that this was not the plan.

Basically, your burden of proof is more than doubled. He has to not only provide sufficient evidence that his current marriage to you is bona fide, he has to provide clear and convincing evidence that his previous marriage was bona fide. Examples of the sort of evidence he'll need includes:

1. Proof of joint ownership of property.

2. Proof of joint tenancy.

3. Proof of comingling of finances.

4. Birth certificates of children born to him and previous wife.

5. Sworn affidavits from people who have first-hand knowledge of the marital relationship.

6. Any other documentation or evidence that helps paint a picture of a genuine marriage.

He'll also need to include a written request for an exemption from 8 CFR 204.2(a)(1)(i)(A).

The good news is that if the exemption is denied there is usually no presumption that the previous marriage actually was entered into for the purpose of evading immigration law. Rather, the denial is usually "without prejudice", and simply because the petitioner failed to provide sufficient evidence to prove they qualified for the exemption. The petitioner can usually resubmit when the five year minimum period has expired.

BTW, he can request certified copies of the children's birth certificates from the state's custodian of records.

Thank you for your valuable input! Would you mind telling me what the exemption from CFR 204.2(a)(1)(i)(A) is?

My husband came to the US in 1999 with a non immigrant visa. he married in 2001 in US, never left, and they didn't file for his LPR status because he didn't knew very well what he was suppose to do and he didn't worry because in his mind he wasn't doing it to gain permanent resident status. There wasn't other petition for him, other from his wife. Years gone by, then came the children, his wife became Us citizen and they decided to file for his status. So he became LPR and three years later got divorced because it was impossible to continue with that situation. He tried many times to keep the marriage going for the sake of the children but it was impossible.

Edited by elicearea

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Approved 12.18.2012!! (after 13 months and 4 days)

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Thank you for your valuable input! Would you mind telling me what the exemption from CFR 204.2(a)(1)(i)(A) is?

My husband came to the US in 1999 with a non immigrant visa. he married in 2001 in US, never left, and they didn't file for his LPR status because he didn't knew very well what he was suppose to do and he didn't worry because in his mind he wasn't doing it to gain permanent resident status. There wasn't other petition for him, other from his wife. Years gone by, then came the children, his wife became Us citizen and they decided to file for his status. So he became LPR and three years later got divorced because it was impossible to continue with that situation. He tried many times to keep the marriage going for the sake of the children but it was impossible.

8 CFR 204.2(a)(1)(i)(A) is the section of the immigration law that prohibits an LPR from filing a petition for a spouse when they obtained their LPR status through a previous marriage less than five years prior.

http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=8cfr

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:

The law then goes on to define the two exceptions:

( 1 ) The petitioner establishes by clear and convincing evidence that the marriage through which the petitioner gained permanent residence was not entered into for the purpose of evading the immigration laws; or

( 2 ) The marriage through which the petitioner obtained permanent residence was terminated through death.

Your husband wasn't eligible to file for LPR status after his marriage because he married an LPR. His ex-wife would have had to file a petition, and then he would have had to wait for his priority date to become current. Even then, he wouldn't have been able to adjust status because his non-immigrant status had expired. The only way he could adjust status while being out of status is by marriage to a US citizen. He didn't become eligible to adjust status until his ex-wife became a US citizen.

In other words, it won't make any difference how he tries to explain the reason for waiting to obtain legal status in the US. As far as USCIS is concerned, he waited because he had no choice - there was no way for him to get a green card through the marriage until his ex-wife became a US citizen. This won't help support his claim that the marriage wasn't entered into for the purpose of evading immigration law. In fact, USCIS will probably look into the circumstances of how his ex-wife obtained her own LPR status.

As I said, the "clear and convincing evidence" standard is a difficult one to meet. Your husband might benefit from the assistance of a good immigration lawyer. This might improve his chances of getting the waiver. If his petition ends up being denied then you might have to wait until he's been divorced for five years before he can submit a petition for you. In that event, he should try to become a US citizen as soon as he's eligible. The petition would then be for an IR1 visa, and you wouldn't have to wait for a priority date to become current.


12/15/2009 - K1 Visa Interview - APPROVED!

12/29/2009 - Married in Oakland, CA!

08/18/2010 - AOS Interview - APPROVED!

05/01/2013 - Removal of Conditions - APPROVED!

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8 CFR 204.2(a)(1)(i)(A) is the section of the immigration law that prohibits an LPR from filing a petition for a spouse when they obtained their LPR status through a previous marriage less than five years prior.

http://www.uscis.gov...90aRCRD&CH=8cfr

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:

The law then goes on to define the two exceptions:

( 1 ) The petitioner establishes by clear and convincing evidence that the marriage through which the petitioner gained permanent residence was not entered into for the purpose of evading the immigration laws; or

( 2 ) The marriage through which the petitioner obtained permanent residence was terminated through death.

Your husband wasn't eligible to file for LPR status after his marriage because he married an LPR. His ex-wife would have had to file a petition, and then he would have had to wait for his priority date to become current. Even then, he wouldn't have been able to adjust status because his non-immigrant status had expired. The only way he could adjust status while being out of status is by marriage to a US citizen. He didn't become eligible to adjust status until his ex-wife became a US citizen.

In other words, it won't make any difference how he tries to explain the reason for waiting to obtain legal status in the US. As far as USCIS is concerned, he waited because he had no choice - there was no way for him to get a green card through the marriage until his ex-wife became a US citizen. This won't help support his claim that the marriage wasn't entered into for the purpose of evading immigration law. In fact, USCIS will probably look into the circumstances of how his ex-wife obtained her own LPR status.

As I said, the "clear and convincing evidence" standard is a difficult one to meet. Your husband might benefit from the assistance of a good immigration lawyer. This might improve his chances of getting the waiver. If his petition ends up being denied then you might have to wait until he's been divorced for five years before he can submit a petition for you. In that event, he should try to become a US citizen as soon as he's eligible. The petition would then be for an IR1 visa, and you wouldn't have to wait for a priority date to become current.

Thanks for the info. My husband was fined when he adjusted (after she became Us citizen) and he didn't have any kind of problems at the interview. They have three kids, for God's sake! Even the officer acknowledge that! Immigration knew very well that he was out of status and they fined him, but other than that he didn't encounter any kind of trouble through his immigration process.

Thank you for sharing your opinion, I appreciate it :)


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Approved 12.18.2012!! (after 13 months and 4 days)

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Thanks for the info. My husband was fined when he adjusted (after she became Us citizen) and he didn't have any kind of problems at the interview. They have three kids, for God's sake! Even the officer acknowledge that! Immigration knew very well that he was out of status and they fined him, but other than that he didn't encounter any kind of trouble through his immigration process.

Thank you for sharing your opinion, I appreciate it :)

Why was he fined? That's not normal. The only time I'm aware of that a fine is involved is if someone is adjusting status under section 245(i) of the INA. This path is primarily for people who entered the US illegally, and had an approvable petition filed on their behalf before April, 2001. This is the last remnants of the Reagan amnesty program.

Someone adjusting status based on a marriage to a US citizen would pay the same fees, whether or not they currently had legal status, and regardless how long they waited to file. There would be no fines involved. Are you sure he didn't just pay the normal fees?

What happened at his AOS interview is of little consequence now. The standard of evidence is different. When you adjust status based on marriage to a US citizen then you don't have to prove with clear and convincing evidence that the marriage wasn't entered into primarily to evade immigration law. Like I said before, the clear and convincing evidence standard is the same one they apply when someone marries after they've been placed in removal proceedings. It's a much higher bar to clear. Having children helps, but it's not sufficient proof by itself.


12/15/2009 - K1 Visa Interview - APPROVED!

12/29/2009 - Married in Oakland, CA!

08/18/2010 - AOS Interview - APPROVED!

05/01/2013 - Removal of Conditions - APPROVED!

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