K1 process and divorce/marriage laws in wisconsin

[desert_fox 32]

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.

... 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?

I can assure you that the USCIS cares about the WI State laws, as this is the only law that applies in this case. If the petitioner is not free to marry, the petition will be denied. They do not allow the leeway of thinking that if I submit now, by the time the USCIS gets around to adjudication the petition, that the petitioner will be free to marry. The petitioner has to be free to marry when the petitioner is submitted.

[rebeccajo 14]

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.

The question has been there all along. What adjudicators must do with the answers is different now. This is the unknown part of IMBRA - what the check to see if and why previous petitions were filed will do to the length of the process.

If you wish to be a guinea pig on this issue I guess that's your decision. Why would you invite a potential petition denial (given the opinion of several others in this thread) especially in light of untested waters?

[diadromous mermaid 36]

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.

... 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?

I can assure you that the USCIS cares about the WI State laws, as this is the only law that applies in this case. If the petitioner is not free to marry, the petition will be denied. They do not allow the leeway of thinking that if I submit now, by the time the USCIS gets around to adjudication the petition, that the petitioner will be free to marry. The petitioner has to be free to marry when the petitioner is submitted.

While I don't know the specific answer to this, I'm inclined to agree with Desert fox on this. "Hedging", as it were, and filing a petition prior to becoming legally free to marry with dire consequences that it *could* be determined later as a void marriage, *could* be perceived as not unlike a person who is planning to divorce, filing just prior to a divorce decree and anticipating that it will be available prior to the marriage with the beneficiary. I have a feeling that the consulate may not be inclined to begin smudging the lines. Has anyone tried to find out what, if any, difficulties or complications there are in securing a marriage license in Wisconsin prior to the 6 month waiting period? For example, would a county office simply deny an application for a license prior to the mandated period has elapsed?

[rebeccajo 14]

If this first filing is denied, are you barred from using the VWP in the future?

[undeadmike 0]

I agree with most people saying we should be cautious. I only want to make sure that we actually have to. And this is why I was asking for people who have been in similar situations or if somebody may know a lawyer in WI who could answer that question.

Basically, it all boils down to the question... what does the USCIS count as "free to marry". And while common sense dictates the answer would be "can go out and get married", we all know common sense does not play much part in immigration laws.

For example... if USCIS wants to make sure you are free to marry within your state, why don't they demand a marriage license as proof you can legally marry (which in WI, I am sure, would not be given to your prior to those 6 months passing)? Yet, they only demand a divorce decree if you have been previously married. While that does not make the case any clearer, it points out that some things in this K1 process are just weird. And this is why I was asking if people have similar experiences or know somebody who has/had. And one person further up this thread actually had the same prob, filed and got through, although its a borderline decision.

We can all bash our heads against each other trying to interpret "free to marry", but like rebeccajo pointed out... we are all not immigration lawyers.

Common sense says... no, don't file, it will get denied. *shrug*

If this first filing is denied, are you barred from using the VWP in the future?

No, not in general. But you would need to mark the "has been rejected a visa in the past" thing on the VW Entry Form, which could result in problems at the POE and a possible "no" from the officer there. And most likely, I would get no visitor visa either, since they could assume immigration intent (would take a lot to prove otherwise). Good point though... havent thought of that consequence.

Edited June 22, 2006 by undeadmike

[john_and_marlene 162]

we all know common sense does not play much part in immigration laws.

But what does play a very big part in immigration laws is strict adherence to law. If you are not legally able to marry on the day you submit your application, you must be denied.

[rebeccajo 14]

FREE TO MARRY is not a debate at all. It's crystal clear plain as the nose on your face.

Sure one could run outside the Wisconsin borders and get married. But your marriage would not be considered legal in Wisconsin, which is the state you are telling USCIS you are going to reside in.

[diadromous mermaid 36]

The question still remains, what is considered "legally free to marry".

From 9 FAM 41.81 N6.6 Petitioner and Beneficiary Must be Legally Free to Marry (CT:VISA-756; 07-27-2005)

a. For a K-1 petition to remain valid, the petitioner and the beneficiary must:

(1) Have been legally free to marry at the time the petition was filed;

(2) Have remained so therafter; and

(3) Continue to have the intent to marry within 90 days after the beneficiary’s admission into the United States.

b. A K-1 petition filed when the petitioner and/or the applicant was still legally married shall not serve as the basis for visa issuance, even though that marriage was terminated and applicant/petitioner became free to marry within 90 days of arrival in the United States. If a consular officer finds that the petitioner and/or applicant is/was not legally free to marry, post mush return the K-1 petition to the national visa center (NVC) under cover of memorandum detailing the specific, objective facts giving rise to the officer’s determination.

[rebeccajo 14]

Thank you mermaid. Spot on as usual!

Edited June 22, 2006 by rebeccajo

[undeadmike 0]

Ok, back to the roots, as I think we are drifting of in a debate about how to interpret the way USCIS interprets the law, which we can't. Moot point anyway, since the USCIS way of interpretation is the one that counts, no matter what we think.

I know we cannot get married under WI law right after the divorce is final but rather after 6 months. But that is not my initial question or the point.

My point is (was)...

Since the USCIS does only ask for a Divorce decree to prove the termination of a previous marriage, is that all that counts for them (because otherwise they could ask for a marriage license, for example) and do they not "care" about the marriage addendum in WI?

In know that most likely answer is : "No, they do care" ,as I know that the marriage law of the state you are planning to get married (and in this case reside too) is the one that counts. But I am asking for people who actually went through a similar situation (or a lawyer who could give me a definive answer) and who actually have dealt with a decision of the USCIS here. Which, I know, is a long shot too, since chances of finding a person going through something like this too is rather unlikely.

So at this point (especially after rebeccajo's point with the VWP) I am thinking about not filing, unless I get a statement from a lawyer that says otherwise.

[diadromous mermaid 36]

Following your logic for a moment, obtaining a marriage license requires that both parties are present. Therefore, USCIS and the DOS couldn't request the license as proof in order to begin processing the NIV. Further licenses are valid in most states for a specified period of time (30 days for example) that wouldn't permit enough time for the beneficiary to be approved and arrive in the USA.

[undeadmike 0]

Ah, ok. Didnt know that... good point.

[undeadmike 0]

Hehe, although... to expand: The divorce decree does not prove anything either, only that the previous marriage is terminated. The person could still be married to somebody else by that point. The marriage certificate would at least prove that you were able to marry at the point of filing. But you're ríght, usually both parties have to be present.

Edited June 22, 2006 by undeadmike

[desert_fox 32]

Hehe, although... to expand: The divorce decree does not prove anything either, only that the previous marriage is terminated. The person could still be married to somebody else by that point. The marriage certificate would at least prove that you were able to marry at the point of filing. But you're ríght, usually both parties have to be present.

????

It proves that the parties named have terminated their marriage IAW the laws of WI. A divorce decree was never met to certify that one of the parties has another marriage. It would also recognize that WI had jurisdiction in the matter, and that all other states would recognize it as valid as long as it doesnt conflict with the state law of another state. If one of the parties had another marriage, that would be a separate matter and a criminal issue.

I think you are letting your mind take you from reality here......

The USCIS would be looking for a decree from WI if the petitioner is a resident of WI. That decree would be the legal document that the USCIS would use in determing if someone is free to marry or not.

[rebeccajo 14]

Hehe, although... to expand: The divorce decree does not prove anything either, only that the previous marriage is terminated. The person could still be married to somebody else by that point. The marriage certificate would at least prove that you were able to marry at the point of filing. But you're ríght, usually both parties have to be present.

Can you spell REDUNDANT?