Free to Remarry - Texas Divorce Definition Help?

[aaron2020 11,651]

Why it it so difficult for people to get that USCIS has to follow Texas marriage laws for a Texas resident?

Why is it so difficult that AT THE TIME OF FILING, the petitioner must be free to marry?

[DarkKiss 45]

I would not lose any sleep over it. I don't believe you will be denied. The 30-day waiting period is not a requirement of the feds. Furthermore, considering the timeline, by the time your petition is processed the 30 days will have elapsed. More importantly so, is that there is nothing that would suggest you acted with ill intent.

Good luck!

Thanks so much!! I'll try to relax and let the chips fall where the may. It is what it is!

[DarkKiss 45]

Not true. You're subject to the laws of the state you get married in. You can marry without waiting 30 days in other states.

I honestly think you're fine. But, you never know.

You could immediately withdraw your petition and refile. It would only cost you a refiling fee and a couple weeks time.

Your other option is to wait and see...which could take several months.

On second thought, DJ&L, I think I'm going to go ahead a withdraw my petition and wait to refile it after March 7th. Can you tell me how to do the withdrawal?

I would actually prefer a few weeks set back to a few months.

[Zedayn 485]

You need to be free to marry at the time you file the petition.

From this case: http://www.uscis.gov/sites/default/files/err/D6%20-%20Fiancees%20and%20Fiances%20of%20U.S.%20Citizen%20(K-1)/Decisions_Issued_in_2013/JUN292013_04D6101.pdf

...his prior marriage was terminated on February 22, 2012, nearly a year after the Form I-129F was filed. The petitioner was therefore not free to enter into a valid marriage with the beneficiary at the time of filing the petition. The petitioner must establish eligibility at the time of filing the nonimmigrant visa petition.

[DarkKiss 45]

This may be extreme, but I am going to call USCIS today and inquire, and based on the information I receive, I will make the determination to withdraw my petition, and refile it after March 7, 2014.

I will keep you guys informed of my final decision.

[DJ&L 83]

On second thought, DJ&L, I think I'm going to go ahead a withdraw my petition and wait to refile it after March 7th. Can you tell me how to do the withdrawal?

I would actually prefer a few weeks set back to a few months.

You need to wait until they send the NOA1 and then send a letter to the address of the service center you were assigned to. Include your name and address and the receipt number from the NOA1. (and perhaps a copy for the NOA1)

All you need to do is request that the petition be withdrawn...no reason necessary. I would send it USPS certified (just something that confirms delivery) so you know they receive it. They will send you a confirmation that your petition has been withdrawn.

You can immediately refile your petition.

[DJ&L 83]

You need to be free to marry at the time you file the petition.

From this case: http://www.uscis.gov/sites/default/files/err/D6%20-%20Fiancees%20and%20Fiances%20of%20U.S.%20Citizen%20(K-1)/Decisions_Issued_in_2013/JUN292013_04D6101.pdf

...his prior marriage was terminated on February 22, 2012, nearly a year after the Form I-129F was filed. The petitioner was therefore not free to enter into a valid marriage with the beneficiary at the time of filing the petition. The petitioner must establish eligibility at the time of filing the nonimmigrant visa petition.

In this case, they filed their petition a year before he got divorced so this is totally different. My only point it, they can marry in another state that doesn't have a 30 day waiting period. They're legally able to marry right now. When you marry in another state, your subject to the laws of that state...not your home state.

Anyway, sounds like she's going to withdraw the petition so you have sufficiently proved your point to her.

[LibCampFireClub 635]

You need to be free to marry at the time you file the petition.

From this case: http://www.uscis.gov/sites/default/files/err/D6%20-%20Fiancees%20and%20Fiances%20of%20U.S.%20Citizen%20(K-1)/Decisions_Issued_in_2013/JUN292013_04D6101.pdf

...his prior marriage was terminated on February 22, 2012, nearly a year after the Form I-129F was filed. The petitioner was therefore not free to enter into a valid marriage with the beneficiary at the time of filing the petition. The petitioner must establish eligibility at the time of filing the nonimmigrant visa petition.

Lots of discussion about something that is so very clear. Zedayn is absolutely correct. If you filed your petition before the thirty-day waiting period, then you are not free to marry according to Texas law, and will be denied according to the USCIS requirement he's quoted. Most states don't have this waiting period to remarry after divorce. Texas has it, and sorry to say that the OP violated it.

There are no two ways to interpret this:

Both the U.S. citizen and the K-1 visa applicant must have been legally free to marry at the time the petition was filed and must have remained so thereafter.

Edited March 4, 2014 by ExExpat

[DarkKiss 45]

Was unable to contact USCIS telephonically, but on the side of caution, I have written a Withdrawal Letter and will overnight it to the TSC tomorrow.

Better to loose the filing fee now, than to get all the way to the Consulate in Santo Domingo if it makes it that far before someone discovers the error, and get a Denial.

I wrote an explanation for my withdrawal and informed that I will be refiling after the Texas Law Requirement of 30 days has passed.

Live and Learn!!!

Edited March 4, 2014 by DarkKiss

[DJ&L 83]

Good luck, Darkkiss! I hope it doesn't slow you down too much.

[David & Diana R 1,005]

Was unable to contact USCIS telephonically, but on the side of caution, I have written a Withdrawal Letter and will overnight it to the TSC tomorrow.

Better to loose the filing fee now, than to get all the way to the Consulate in Santo Domingo if it makes it that far before someone discovers the error, and get a Denial.

I wrote an explanation for my withdrawal and informed that I will be refiling after the Texas Law Requirement of 30 days has passed.

Live and Learn!!!

After all of these people started going off I believe you came up with the best possible resolution. Err on the side of caution. Like you say you wouldn't want this to come back and bite you in the a*s months from now. Might as well just lose a few weeks instead of months of lost sleep and stress.

Good decision me thinks...

Good luck and God Bless both of you.

Edited March 4, 2014 by David & Zoila

[KayDeeCee 4,892]

Texas residents are subject to Texas laws.

It doesn't matter if the OP wants to marry in another jurisdiction. He is still subject to Texas laws.

Under Texas laws, he is not free to marry. The petition will be denied.

This is similar to cousin marriages. Cousin marriages are not allowed in Texas. Cousin marriages are legal in California. A Texas resident filing for a cousin K-1 will be denied while a California resident filing for a K-1 will be granted. It doesn't matter if both couples want to marry in California. Under Texas laws, the Texas resident cannot legally marry so the US Embassy will apply Texas laws.

The rules for same sex marriage is different. This is the exception to the rules.

The US Supreme invalidating DOMA means the US government cannot discriminate based in sexual orientation.

There is no prohibition against applying other state laws that are valid. - including most state marriage laws.

There is not an exception for SSM. It is the same for them as it is for cousin marriages. It is not about where they reside, but where they will marry.

Here is an approved 1st cousin marriage from 2008 > http://www.visajourney.com/forums/topic/113103-k1-visa-on-hold-as-texas-does-not-allow-first-cousin-marriage-what-to-do/

And another from just last month > http://www.visajourney.com/forums/topic/476156-marriage-between-first-cousins/

They provide documentation that they will marry where it is legal, same as a same sex couple does in order to be approved. The marriage needs to be in a state where it is legal, not legal in the state where they reside.

As for the waiting period to remarry.. OP, you should wait it out to be on the safe side. However, not sure they would outright deny you. I suppose it would depend on how picky the adjudicator was. There would probably have been no issue to worry over had you indicated you would marry in a state with no waiting period. Not sure you need to bother to withdraw and waste your filing fee just yet.

[Gosia & Tito 199]

I filed for my Divorce in Dec 2013. It was Final and signed by Judge 4 Feb 2014. I signed I-129F on 12 Feb 2014, that I was free to re-marry and filed the I-129F on 24 Feb 2014.

I was recently told that you have to wait 30 days in Texas to re-marry. So since I signed the form only 8 days after my divorce stating that I was free to re-marry, Did I Lie....OMG....Please help,this is a nightmare and driving me crazy

I'd think you could marry elsewhere and not be bound by the TX rules.

[DarkKiss 45]

You need to wait until they send the NOA1 and then send a letter to the address of the service center you were assigned to. Include your name and address and the receipt number from the NOA1. (and perhaps a copy for the NOA1)

All you need to do is request that the petition be withdrawn...no reason necessary. I would send it USPS certified (just something that confirms delivery) so you know they receive it. They will send you a confirmation that your petition has been withdrawn.

You can immediately refile your petition.

My decision to withdraw is final. I've spoken to my fiancee and he is in agreement. But I have a few questions:

1. Will USCIS send me the original packet back, and will I have to wait for it before I can re-file? The reason I'm asking is because my Fiancee's Letter of Intent and his G-325A are in that packet, and those are originals with original signatures. If I don't wait for them to send the packet back with those original documents, he will have to redo them and DHL them to me again from the Dominican Republic. (His Letter of Intent is OK because he has never been married)

2. OR willl he have to re-do his Letter of Intent and his G-325A anyway, and re-date to conform to the new date that I will be putting on my letter and forms.

Thanks Again

[Brian&Larissa 73]

DarkKiss...you will need to submit everything again, like new. They don't return what you submitted to USCIS. I had to cancel a petition and I received nothing in return.