Free to Remarry - Texas Divorce Definition Help?

[I & B 273]

"The marriage must be legally possible according to laws of the U.S. state in which the marriage will take place."

http://travel.state.gov/content/visas/english/immigrate/types/family/fiance-k-1.html

You should probably err on the side of caution and withdraw and refile based on this language.

[TBoneTX 43,485]

It would be nice, and highly appropriate, if respondents would indicate whether they are licensed to practice law or if they are merely offering their educated (or not) interpretation of whether something will or will not happen in regard to the OP's issue.

[LibCampFireClub 635]

It would be nice, and highly appropriate, if respondents would indicate whether they are licensed to practice law or if they are merely offering their educated (or not) interpretation of whether something will or will not happen in regard to the OP's issue.

According to VJ Terms of Service, attorneys are not allowed to offer advice. Everything posted in these forums are the opinions of the poster. Anyone who needs legal advice should consult with a licensed attorney.

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Edited March 5, 2014 by ExExpat

[Zedayn 485]

It would be nice, and highly appropriate, if respondents would indicate whether they are licensed to practice law or if they are merely offering their educated (or not) interpretation of whether something will or will not happen in regard to the OP's issue.

Of course everything presented here is the opinion or educated interpretation of the issue. When I offer my interpretation, I usually also try to offer a source from which it is based.

The issue is whether it is a problem the OP filed a petition, while not fulfilling the waiting period following divorce according to Texas law. I do not argue that the OP cannot marry in another state, because of the waiting period in Texas...of course he is within his legal right to marry in another state. The issue is, how will this affect his petition? According to a case, which I provided the link earlier, both parties must establish they are free to marry at the time of filing. Who makes that determination? When USCIS receives his petition, it will have his listed Texas address as well as his divorce decree. They will see according to Texas law he is not free to remarry in Texas. BUT....it also does not necessarily mean he is not free to remarry, if he does so in another state. Had he indicated the state he intended to marry, it may not have caused any problems. He may only receive an RFE for the issue, in which he can submit that he will marry in a state that does not have a waiting period. Alternatively, if he received a denial, he might be able to appeal the decision...citing that he could legally marry elsewhere and not in Texas.

[DJ&L 83]

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

I am not an attorney and I don't play one on TV...and I didn't sleep at a Holiday Inn Express last night either.

You'll need all new original documents. Meaning, anything with an original signature you'll need to re-do. Obviously, anything that was copied you can simply copy again and resubmit. But as a previous poster said, you have to re-create the entire packet, unfortunately....you get nothing back form the USCIS.

[LibCampFireClub 635]

Absolutely right! The entire objective of this site is to have a place for all of us to gather opinions. The request for members to post legal disclaimers is heavy-handed and misleading.

[DarkKiss 45]

What would happen if I sent an addendum to my Letter of Intent to Marry and indicate the state in which I intend to marry? Could I do that now? Is that an option? I'm just trying to see if there's anything left that might cure the problem before I withdraw the petition?

[DJ&L 83]

I've read threads here that say if you send additional information unsolicited, they will send it back. But I don't know this for fact...I'm just telling you what I've seen people post. If you get an RFE (even if it's not for this) you would have the opportunity to include additional information. Many people use RFE's (myself included) to do additional front loading. So, with an RFE you could include that letter.

**I'm not an attorney and I don't play one on TV.

[DarkKiss 45]

I've read threads here that say if you send additional information unsolicited, they will send it back. But I don't know this for fact...I'm just telling you what I've seen people post. If you get an RFE (even if it's not for this) you would have the opportunity to include additional information. Many people use RFE's (myself included) to do additional front loading. So, with an RFE you could include that letter.

**I'm not an attorney and I don't play one on TV.

Thanks DJ&L. I think that will be my final question on this matter. I will decide either way. Last night, my conviction to Withdraw was Firm, but now I'm undecided. I have to do some more thinking on the matter. Either way, I thank everyone for your advice and opinions but ultimately the final decision is mine and fiancee's. We will do the best thing that we feel is right for us.

In the future, for any VJers getting a divorce in the State of Texas, take my advice and wait the 30 days after the Divorce BEFORE filing your Petition!!!!!!

[Eric-Pris 1,602]

You are right...however, unless the OP indicated in his letter of intent the state he intends to marry, then it will be assumed he will remarry in Texas. This is why I suggested if he receives an RFE to indicate the state he intends to marry.

How do YOU know what USCIS will assume?

[David & Diana R 1,005]

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

I would have him complete new original letters with the new dates and have him get them to you ASAP. I don't think you will have to wait for your original packet to get back to you even it ever does.

God Bless

[Zedayn 485]

How do YOU know what USCIS will assume?

I DON'T know what they will assume. Just like I don't know how they will adjudicate his petition based on the information they have. If they limit themselves to Texas law, he could be given a denial. If they are more open, they could simply send him an RFE.

I suppose the statement you highlighted should read "..could be assumed he will remarry in Texas."

[Eric-Pris 1,602]

Obviously, none of us know how they will handle this, but I would not withdraw the petition. I doubt CIS would know this Texas 30-day requirement, much less actually catch it.

[LibCampFireClub 635]

Obviously, none of us know how they will handle this, but I would not withdraw the petition. I doubt CIS would know this Texas 30-day requirement, much less actually catch it.

I think it's reasonable to assume that all adjudicators and keypunch people at the USCIS are using a proprietary application to enter all applications. One of the keystones of the K1 visa is to be free to marry, and if previously married and divorced in the USA, then the divorce must meet the state criteria for being considered legal. So, they key-in the date of the application, date and state of most recent divorce, and it's reasonable to assume that it determines whether you're free to marry or not. Of course, I don't have any way to know that for sure, but make that assumption by employing several years' experience working in the software industry. It's not likely in my opinion that would miss it, but hey, it could happen.

[KayDeeCee 4,892]

What would happen if I sent an addendum to my Letter of Intent to Marry and indicate the state in which I intend to marry? Could I do that now? Is that an option? I'm just trying to see if there's anything left that might cure the problem before I withdraw the petition?

Once you get your NOA1 and know which service center your petition is being processed at, you could send additional documentation. Send it with a copy of your NOA1, an explanation and new documentation. People have had documents get matched up to their case files this way. It is not 100% that it will find its way to your file, but it is possible, as others have had success doing so.