Filing i-130 after family based immigration

[Eastsidestory 1]

I am a permanent resident, got my green card through marriage. Here is the story:

I came as a student, married a citizen and, unfortunartely, the marriage failed before 2 years passed. Divorce process took me more than a year, but at last it was done and I applied to remove conditions (751 waiver). That also took a very long time. Now it has been almost 2.5 years since me and my former spouse got separated, over a year since my divorce was finalized and I recently got my 10 year green card in the mail after an interview.

During this time I reconnected with an old friend who still lives in my hometown in my home country. We started dating a few months after my separation and have been in long distance relationship for almost 2 years now.

I know, it's complicated.

Now we are thinking about getting married and living in the United States. We have 2 ways:

1) wait for my citizenship and file i-130 and i-485, which will all together take 3.5 years (assuming processing times stay the same as now). But we really don't want to wait so long, long disctance sucks.

2) Get married next year and file i-130 then, considering it's much faster now than it used to be. But here is the problem: the form says I have to prove that my first marriage was bona fide. And it was, it truly was, it just didn't work out. Technically I proved it when I filed my 751 waiver and received a 10 year green card. Will I have to prove it again when I file I-130, or having my unconditional green card is enough?

My question boils down to this:

If I got my residency through the first marriage, got divorced, then proved it was bona fide and removed conditions from my green card, when I file i-130 in my second mariage, do I need to submit proofs about the first marriage again? All that taking place before I am eligible to apply for citizenship (i.e. 5 years being a permanent resident).

I can see USCIS point: people can marry someone just for the green card, divorce and marry the love of their life who was waiting all this time. But I can also justify my own choices and I know my first marriage was real and I married my spouse for all the right reasons. I already proved it, since US issued me a unconditional green card, and I shouldn't have to prove it again. Also, it has been a long time since I got separated, I cannot be expected to put my life on hold for a couple of years, I can meet and date someone while dealing with immigration and a long divorce. Hell, sometimes divorces take several years, we can't expect these people to be single all that time.

Finally, if you know someone who was in the similar situation or can point me to a topic here, I will be very grateful.

Thank you for taking time to read.

[apple21 953]

When did you marry your ex-spouse?

[Eastsidestory 1]

in 2010.

Is it relevant?

[Merrytooth 5,748]

I always find JimVaPhuong's answer very informative, although he no longer active posting in the forum.

Maybe this thread will help you in your questions:

http://www.visajourney.com/forums/topic/291498-questions-regarding-i-130-for-spouse-of-lpr/?p=5133225

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...

© 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.

[apple21 953]

If you read the i-130 instructions http://www.uscis.gov/sites/default/files/files/form/i-130instr.pdf, you have to be an LPR for 5 years before you can file i-130 for your new spouse AND you have to prove (again) that your previous marriage to your USC petitioner/spouse was bonafide.

You can get married but you have to wait to file i-130. Yes, they will scrutinize your case, so be prepared.

Edited November 24, 2013 by apple21

[Eastsidestory 1]

My head hurts from all this new info:(

Okay. Let me get that straight:

I became a LPR in September 2010.

If I marry a non-USC before September 2015, I need to prove that my first marriage was bona fide. Correct?

If I marry a non-USC after September 2015, i.e. after 5 years from the date I got my first green card have passed, I DON'T need to prove that my first marriage was bona-fide. Correct?

If I become a USC and then marry again, do I need to prove anything about the first marriage?

If I marry before September 2015 (within 5 years of getting my first green card), but file i-130 only after I become a citizen, do I need to prove anything about my first marriage?

And finally, what's the safest and fastest way for us?

Thank you.

[NigeriaorBust 4,087]

If you got your resident through marriage to a USC you are not allowed to file an I130 for 5 unless unless you prove that the first marriage was bonefide. The rule is because too many people from high fraud countries marry a USC dump them then try to bring their "real" familiy by supposedly rediscovering and old love ( who was waiting home all the time )

[Eastsidestory 1]

Ok, so we could get married now, but we'd still have to wait unitl September 2015 (5 years of being LPR) to file i-130 if I don't want to prove anything about my first marriage. right?

If you got your resident through marriage to a USC you are not allowed to file an I130 for 5 unless unless you prove that the first marriage was bonefide. The rule is because too many people from high fraud countries marry a USC dump them then try to bring their "real" familiy by supposedly rediscovering and old love ( who was waiting home all the time )

Is the 5 year rule for applying or for re-marrying?

[Merrytooth 5,748]

The 5 year rule is for applying for I-130.

[NigeriaorBust 4,087]

The rule is about filing an I130 if you marry but the time you file and get a visa you may get an IR2 and that save ROC fees

[Eastsidestory 1]

Ok, so I'm back to square 1: wait 3.5 years before we reunite. But at least we can be married all this time.

I just found out today about the current priority date on F2A petitions and got very excited. Too bad it won't apply to us.

Thank you all for clarifying it for me.

[NigeriaorBust 4,087]

when did you first get your green card that is when the clock started not the 10 year

[Eastsidestory 1]

I got it September 2010, so still 2 years before I can apply for citizenship and 2.5 before I become a citizen.

Oh, right. I can't count, apparently! Thank you. It's 2.5. not 3.5))

when did you first get your green card that is when the clock started not the 10 year

[KazuriSana 324]

Ok, so I'm back to square 1: wait 3.5 years before we reunite. But at least we can be married all this time.

keyword: reunite?

You mean you knew her (and Adam knew Eve, and she bore him a son) before you married your USC. You seem fixated and very worried about proving stuff about your USC (ex) spouse.

[Boiler 45,670]

You could be reunited now.