Questions regarding I-130 for spouse of LPR

[iamwhatiam80 92]

Hello VJer's,

I am a LPR who got married in Dec 2010. I want to petition for my wife who is in India. I would greatly appreciate if someone can answer my doubts.

1. Is it OK for me to petition for her because my green card was through a previous marriage which ended in a divorce and I got my GC approved through an I-751?

2. Do i have to submit anything from my previous marriage in this petition because I came to know that one cannot petition for current spouse for 5 years from date of GC approval? OR in short what is the impact of previous marriage on this petition?

3. Or is it best for me to wait till i become a citizen?

Greatly appreciate a reply.

[Miami_Boy 9]

Hello VJer's,

I am a LPR who got married in Dec 2010. I want to petition for my wife who is in India. I would greatly appreciate if someone can answer my doubts.

Greatly appreciate a reply.

1. Is it OK for me to petition for her because my green card was through a previous marriage which ended in a divorce and I got my GC approved through an I-751?

You can file for your present spouse if you have 10 years green card

2. Do i have to submit anything from my previous marriage in this petition because I came to know that one cannot petition for current spouse for 5 years from date of GC approval? OR in short what is the impact of previous marriage on this petition?

You have to submit all previouse marrieage/devorce certificate. If you have 10 years GC, i dont think any condition will apply on that purposes.

3. Or is it best for me to wait till i become a citizen?

F2A category now takes around 4-5 years for final visa approval according to February visa bulletin. You may apply I-130 application now and later on you could upgrade your case file once you become US citizen.

[iamwhatiam80 92]

1. Is it OK for me to petition for her because my green card was through a previous marriage which ended in a divorce and I got my GC approved through an I-751?

You can file for your present spouse if you have 10 years green card

2. Do i have to submit anything from my previous marriage in this petition because I came to know that one cannot petition for current spouse for 5 years from date of GC approval? OR in short what is the impact of previous marriage on this petition?

You have to submit all previouse marrieage/devorce certificate. If you have 10 years GC, i dont think any condition will apply on that purposes.

3. Or is it best for me to wait till i become a citizen?

F2A category now takes around 4-5 years for final visa approval according to February visa bulletin. You may apply I-130 application now and later on you could upgrade your case file once you become US citizen.

Thank you Miami_Boy. I appreciate your reply.

[Jojo92122 1,924]

Read Number 5. This is the instructions for Form I-130.

----------------------------------------

Who May Not File Form I-130?

You may not file for a person in the following categories:

1. An adoptive parent or adopted child, if the adoption took place after the child's 16th birthday, or if the child has not been in the legal custody and living with the parent(s) for at least 2 years prior to the filing of the petition.

2. A natural parent, if the U.S. citizen son or daughter gained permanent residence through adoption.

3. A stepparent or stepchild, if the marriage that created the relationship took place after the child's 18th birthday.

4. A husband or wife, if you and your spouse were not both physically present at the marriage ceremony, and the marriage was not consummated.

5. A husband or wife, if you gained lawful permanent resident status by virtue of a prior marriage to a U. S. citizen or lawful permanent resident, unless:

A. A period of five years has elapsed since you became a lawful permanent resident; or

B. You can establish by clear and convincing evidence that the prior marriage through which you gained your immigrant status was not entered into for the purpose of evading any provision of the immigration laws; or

C. Your prior marriage through which you gained your immigrant status was terminated by the death of your former spouse.

[iamwhatiam80 92]

Read Number 5. This is the instructions for Form I-130.

----------------------------------------

Who May Not File Form I-130?

You may not file for a person in the following categories:

1. An adoptive parent or adopted child, if the adoption took place after the child's 16th birthday, or if the child has not been in the legal custody and living with the parent(s) for at least 2 years prior to the filing of the petition.

2. A natural parent, if the U.S. citizen son or daughter gained permanent residence through adoption.

3. A stepparent or stepchild, if the marriage that created the relationship took place after the child's 18th birthday.

4. A husband or wife, if you and your spouse were not both physically present at the marriage ceremony, and the marriage was not consummated.

5. A husband or wife, if you gained lawful permanent resident status by virtue of a prior marriage to a U. S. citizen or lawful permanent resident, unless:

A. A period of five years has elapsed since you became a lawful permanent resident; or

B. You can establish by clear and convincing evidence that the prior marriage through which you gained your immigrant status was not entered into for the purpose of evading any provision of the immigration laws; or

C. Your prior marriage through which you gained your immigrant status was terminated by the death of your former spouse.

Hi jojo92122,

Thats what I realized yesterday and I confirmed that with my lawyer. I feel so out of luck and dejected. I can still try by using 5B as my option but I dont want to take a chance. I can only petition for her once I become a citizen.

Thanx anyways for pointing that out to me. Appreciate it.

[iamwhatiam80 92]

Hi jojo92122,

Thats what I realized yesterday and I confirmed that with my lawyer. I feel so out of luck and dejected. I can still try by using 5B as my option but I dont want to take a chance. I can only petition for her once I become a citizen.

Thanx anyways for pointing that out to me. Appreciate it.

Now that I cannot sponsor my wifes GC until 5 years have elapsed since I first got my GC, can I atleast try to get her a visit visa? My point is that she can overcome the presumed immigrant intent by telling the consular officer that I cannot sponsor her even if she comes to the US. So the purpose will just be to visit me and then leave. Can i give it a shot?

Did anyone have any success in this process? OR is it next to impossible to call my wife since she is already married to a permanent resident?

[RICARDO4EVA2 194]

Now that I cannot sponsor my wifes GC until 5 years have elapsed since I first got my GC, can I atleast try to get her a visit visa? My point is that she can overcome the presumed immigrant intent by telling the consular officer that I cannot sponsor her even if she comes to the US. So the purpose will just be to visit me and then leave. Can i give it a shot?

Did anyone have any success in this process? OR is it next to impossible to call my wife since she is already married to a permanent resident?

She can Always Apply for a tourist visa. She can overcome the intent thru means of strong proof. She may not even need to provide the consular office with voluntary information unless requested. You should give it a Shot. Others might lean towards saying no but you'll never know unless you try.

[iamwhatiam80 92]

She can Always Apply for a tourist visa. She can overcome the intent thru means of strong proof. She may not even need to provide the consular office with voluntary information unless requested. You should give it a Shot. Others might lean towards saying no but you'll never know unless you try.

We will NOT hide the fact that she is married to a permanent resident (which in itself is a strong point to get a refusal)

All we are trying to say is "Hey look. I cant sponsor her even if she comes here because the 5 year rule is not over yet. All we are trying to do is that she can visit me and then leave. End of story.

[RICARDO4EVA2 194]

No not to hide marriage thats a clear no. The application would have been completed with the information. I'm saying basically dont give information unless requested.

Ok so as far as her just visiting because you cant sponsor her unfortunately has no grounds if that is the case then you should visit her.

Edited February 8, 2011 by RICARDO4EVA2

[iamwhatiam80 92]

Fellow Vjer's,

My wife was denied B1/B2 visa. She was told that I should file her I-130. We may reapply. I would have petitioned her GC but the instructions in I-130 states that if the petitioners green card was through a previous marriage then he/she cannot sponsor unless:

A. A period of five years has elapsed since you became a lawful permanent resident; or

B. You can establish by clear and convincing evidence that the prior marriage through which you gained your immigrant status was not entered into for the purpose of evading any provision of the immigration laws; or

C. Your prior marriage through which you gained your immigrant status was terminated by the death of your former spouse.

A and C are out of question. For A , I still have 1.3 years. With regards to B, when do I have to establish this fact? At the time of submitting the I-130 or at the time they invite my wife to apply for the immigrant visa. And what do I have to submit for that? I am guessing all the evidence that I submitted when I applied for the removal of conditions. Please advise.

[aaron2020 11,651]

Fellow Vjer's,

My wife was denied B1/B2 visa. She was told that I should file her I-130. We may reapply. I would have petitioned her GC but the instructions in I-130 states that if the petitioners green card was through a previous marriage then he/she cannot sponsor unless:

A. A period of five years has elapsed since you became a lawful permanent resident; or

B. You can establish by clear and convincing evidence that the prior marriage through which you gained your immigrant status was not entered into for the purpose of evading any provision of the immigration laws; or

C. Your prior marriage through which you gained your immigrant status was terminated by the death of your former spouse.

A and C are out of question. For A , I still have 1.3 years. With regards to B, when do I have to establish this fact? At the time of submitting the I-130 or at the time they invite my wife to apply for the immigrant visa. And what do I have to submit for that? I am guessing all the evidence that I submitted when I applied for the removal of conditions. Please advise.

You will need to prove that your first marriage was a bona-fide marriage.

The US government is concern with this planned scenario; 1) foreigner is in love with a girl from home & both want to immigrate to the US, 2) foreigner marries a US citizen to obtain LPR status, 2) divorce after getting 10 years green card in 2 years, 3) divorce, and 4) return home to marry true love and bring her to the US as an immigrant.

If you knew the girl before you immigrated, there will be questions. If you met her after your divorce, no problem.

[iamwhatiam80 92]

@aron2020

Thanx for the explanation. It really does make sense from USCIS perspective. But my question again is

How and when do I have to prove that my prior marriage was bonafide and genuine. I mean process wise and document wise. OR

Should I just become a USC so that this thing does not apply to me. Please note that I want to file her I-130 so that she atleast gets in the line and then I can upgrade the application. Thats my whole point.

I knew my current wife ONLY after i got divorced and got my 10 year GC.

Thank you v much.

You will need to prove that your first marriage was a bona-fide marriage.

The US government is concern with this planned scenario; 1) foreigner is in love with a girl from home & both want to immigrate to the US, 2) foreigner marries a US citizen to obtain LPR status, 2) divorce after getting 10 years green card in 2 years, 3) divorce, and 4) return home to marry true love and bring her to the US as an immigrant.

If you knew the girl before you immigrated, there will be questions. If you met her after your divorce, no problem.

[aaron2020 11,651]

@aron2020

Thanx for the explanation. It really does make sense from USCIS perspective. But my question again is

How and when do I have to prove that my prior marriage was bonafide and genuine. I mean process wise and document wise. OR

Should I just become a USC so that this thing does not apply to me. Please note that I want to file her I-130 so that she atleast gets in the line and then I can upgrade the application. Thats my whole point.

I knew my current wife ONLY after i got divorced and got my 10 year GC.

Thank you v much.

Becoming a US citizen doesn't change the law. You obtained your LPR status through marriage, so it doesn't matter if you become a US citizen. That is still the way you became an LPR. The restrictions will still apply.

She can't get in line because you can't file for her unless you can prove your first marriage was a bona fide marriage and not one for evading immigration laws. The I-130 will be denied if you can't prove this.

How did you prove that your first marriage was a bona-fide marriage to remove your condition? That's the same evidence you will need to prove a real marriage that was not entered to evade US immigration laws.

[iamwhatiam80 92]

@aaron

Thanx for the reply. Looks like i am stuck here. So by the time I become a USC, I will already pass the 5 years elapsed duration. Then I dont think I should have any problem.

I proved my first marriage by submitting all the documentary evidence when I filed for removal of conditions. So you are saying that I should submit all my documents again along with the I-130 application to get it approved? Oh man...

Becoming a US citizen doesn't change the law. You obtained your LPR status through marriage, so it doesn't matter if you become a US citizen. That is still the way you became an LPR. The restrictions will still apply.

She can't get in line because you can't file for her unless you can prove your first marriage was a bona fide marriage and not one for evading immigration laws. The I-130 will be denied if you can't prove this.

How did you prove that your first marriage was a bona-fide marriage to remove your condition? That's the same evidence you will need to prove a real marriage that was not entered to evade US immigration laws.

[RICARDO4EVA2 194]

@aaron

Thanx for the reply. Looks like i am stuck here. So by the time I become a USC, I will already pass the 5 years elapsed duration. Then I dont think I should have any problem.

I proved my first marriage by submitting all the documentary evidence when I filed for removal of conditions. So you are saying that I should submit all my documents again along with the I-130 application to get it approved? Oh man...

If you are going to Apply AFTER the 5 year mark after you have obtained your resident status then, providing the evidence for B is not needed. If you will submit it now (before the 5 years.. then you will need to provide evidence... writing a letter etc.