K1 process and divorce/marriage laws in wisconsin

[Mrs.J06 4]

Well, we had exactly the same problem. My husband received his final divorce decree from a Wisconsin court in July 2004, we started the K-1 petition in January 2005.

Turned out we had filed 182 days after his divorce became final. However we were not aware of this 6 months waiting period when we filed. It was NOT mentioned on my husband's divorce decree.

The issue came up during the waiting period for our NOA2, and our attorney (who is based in Minnesota) was not sure about this, either! He basically "guessed" that since USCIS does not know which state you plan to get married in and live in once the non-USC has entered the country, these state-specific laws are not taken into account. But again, that was just his guess!

Bottom line, I would contact a Wisconsin - based attorney about this, preferrably one who knows a bit about immigration, too.

That's not much help, I know, sorry...

[Michele&Omer 0]

I was divorced in Wisconsin a few years ago so I dug out my divorce papers, here is what it says

under Conclusions of Law and Judgment:

It is unlawful for any person, who is or has been a party to an action for

divorce in any court in this state, or elsewhere to marry again until six months after judgment of divorce

is granted, and the marriage of any such person solemnized before the expiration of six months from

the date of the granting of judgment shall be void.

Not sure this statement helps, but at least you know now what it says on the divorce documents officially.

[undeadmike 0]

Hm... that doesnt look too good. If it's indeed mentioned on the divorce decree, then all we could is basically file and see if USCIS does actually care about state laws or assumes you would wait until those six months are over.

I guess I have to wait and see what is mentioned on the decree of my girlfriend.

Anybody else in this forum ever got divorced in Wisconsin and still have the papers?

[rebeccajo 14]

Oh jeez.

Ok. Theoretically (although not likely) you could file, get approved and marry within the 120 days. It depends on your case and your consolate, which you have not disclosed to us. We were done, dusted and married in five months.

Are you going to RESIDE in Wisconsin? Do you want to be considered legally married in Wisconsin? Eligible for any legal protection, tax status, etc. that marriage might offer you as a couple in the state of Wisconsin, including legitimization of any children that might be born to you in the future?

Just a point you might consider to be moot because of the length of time involved in filing for the K1.

That being said, your wife's divorce attorney needs to clarify what the 120 day statute means. As for filing your petition - well you could roll the dice and file now hoping they don't catch it. If they do you will be issued a denial, not an RFE.

And what of the new provision of IMBRA regarding the USC having filed a previous petition? Could that even impact the second petition she would file for you after the first is denied? I'm not a lawyer so I'm not going there.

Edited June 22, 2006 by rebeccajo

[undeadmike 0]

The marriage itself is not an issue at all. Like being said earlier, the K1 process takes its time anyway and considering the fact that the visa is valid for 6 months to get in and 90 days after that to marry and file AOS, the time issue is not a problem - enough wiggle room.

By the way, its about the 6 months AFTER the divorce is final (so ~180 days) and not about the timeperiod between filing for divorce and the final judgment on that (which is 120 days minimum by law).

So, yes, so far we plan to stay WI residents and so the marriage needs to be considered legal there. But again, we don't want to marry before those 6 months are over, we just want to already start the K1 process and not "waste" those 6 months waiting.

I asked Visapro for their opinion but they cannot really offer a definitive answer, as their are not familiar with WI marriage laws. Technically, you are supposed to the "free to marry" (as we all know). But in the case of WI, that sentence alone is too foggy and vague. And since you give them the divorce decree to prove that you are free to marry... well again... who knows if USCIS cares about state laws, as they don't know where we want to marry and reside (for example, what if a fiance moves to a different state while the K1 runs?).

So far, I am thinking about just filing the whole thing no matter what. At most, we lose the $170 filing fee if we get denied and have to try again after 6 months.

Does anybody know a good immigration laywer in Wisconsin I could call (or with the Milwaukee area to go to) who could offer help?

[rebeccajo 14]

So far, I am thinking about just filing the whole thing no matter what. At most, we lose the $170 filing fee if we get denied and have to try again after 6 months.

What if you get denied and the previous filing provisions of IMBRA?

[undeadmike 0]

Actually, I am not that familiar with IMBRA. In a nutshell, what does it say about previous filings?

[rebeccajo 14]

DOS cannot issue a K visa (unless DHS grants a waiver or the domestic violence victim exception applies) if the U.S. citizen has previously filed two K visa petitions, and less than two years have passed since the date of filing of the most recent K visa petition. DHS can waive this bar, but not when the U.S. citizen has a history of committing domestic abuse or other violent crimes.

I am not a lawyer. IMBRA is untested. You may be inviting further delays by having to file a waiver. I may be completely wrong.

Edited June 22, 2006 by rebeccajo

[undeadmike 0]

Well, she hasnt filed for any K1 Visa yet - ever. So when we file a second time, we obviously have not have had two filings before that. Am I getting it right?

[rebeccajo 14]

Well, she hasnt filed for any K1 Visa yet - ever. So when we file a second time, we obviously have not have had two filings before that. Am I getting it right?

I know it says AND. But we are not lawyers here and IMBRA is untested. It might not be a problem but why would you invite one?

[undeadmike 0]

Well, I guess that would be another question I should ask a lawyer. Although "and" is "and", even in lawyer-language.

Anyway, something I need to look into. Thanks for pointing that out.

[rebeccajo 14]

Well, I guess that would be another question I should ask a lawyer. Although "and" is "and", even in lawyer-language.

Anyway, something I need to look into. Thanks for pointing that out.

Show me your JD and I'll show you mine. Wise guy.

Edited June 22, 2006 by rebeccajo

[undeadmike 0]

Hey, no need to get grumpy. I'm just saying I don't know the answer either. Just from reading the law - that states two filings (approved ones as I found out) and one within the last 2 years - I dont see it applying to her. Yes, I agree, we are not lawyers but if I wait for IMBRA to be tested I wait years.

[rebeccajo 14]

IMBRA or no, IMHO you invite the second filing to be pulled for a check as to why the first was denied.

Your call.

[undeadmike 0]

Yep, it will be checked...no doubt about that. The I-129F already has the question in it. Filed before? Yes/No and the outcome. All under point 11.