How long should a person who gets her citizenship by marriage wait to remarry her ex-spouse after divorce?

[Jay Du 1]

My friend came to US as K1 visa and got married to a US citizen. After 3 years, she got her US citizenship. During the 3 years, they did not have any child of their own. Now she is divorced. She wants to remarry her ex-spouse with whom she has a child in her home country and reunion with him here in the US. Her questions as as follows.

 

1. How long would she need to wait before she remarry her ex-spouse from the point view of applying for spouse visa?

2. Would it be better to remarry in the home country first and apply for spouse visa or to apply for K1 visa directly?

 

Many thinks in advance.

 

Jay

[JFH 12,190]

It's this kind of thing that annoys me. She used a USC for immigration benefit. As soon as she got her citizenship she divorced him and is going to re-marry her original husband to bring him here. That was the plan all along. Why didn't she bring the child with her when she came on a K-1? Because there was never any intention to build a family life with the USC husband. 

 

She can marry when she is legally free to marry (if there is a waiting period following divorce in her state of residence then she will need to wait that long after the divorce  before marrying again). She can petition as soon as they are legally re-married. Whether the visa will be approved or not is a whole other story. 

 

Which country is this? 

[Hypnos 6,576]

She may face additional scrutiny, since this has the hallmarks of a common fraudulent way that many people use to abuse the system, as described above. 

[Jay Du 1]

8 minutes ago, JFH said:

It's this kind of thing that annoys me. She used a USC for immigration benefit. As soon as she got her citizenship she divorced him and is going to re-marry her original husband to bring him here. That was the plan all along. Why didn't she bring the child with her when she came on a K-1? Because there was never any intention to build a family life with the USC husband. 

 

She can marry when she is legally free to marry (if there is a waiting period following divorce in her state of residence then she will need to wait that long after the divorce  before marrying again). She can petition as soon as they are legally re-married. Whether the visa will be approved or not is a whole other story. 

 

Which country is this? 

Please note that it is the USC who kicked her out and filed the divorce case to divorce her. Her child was too old to come on a K-2 visa. Thank you very much for your prompt reply.

[Jay Du 1]

9 minutes ago, Hypnos said:

She may face additional scrutiny, since this has the hallmarks of a common fraudulent way that many people use to abuse the system, as described above. 

Yes, you are right. That's why I am posting here to get some advice on how she would proceed. Thanks for your prompt reply.

[JFH 12,190]

15 minutes ago, Jay Du said:

Please note that it is the USC who kicked her out and filed the divorce case to divorce her. Her child was too old to come on a K-2 visa. Thank you very much for your prompt reply.

I'd kick out someone who blatantly used me for immigration fraud too. 

 

So it was a long marriage she had with her original husband? Especially if the child is now in his or her 20s. Even more suspicious. It's not like it was someone she married on a whim and realized she'd made a huge mistake so divorced him very quickly. 

Edited January 1, 2018 by JFH

[belinda63 3,038]

Huge red flags on this matter. USC might want to be prepared to return to her home country.

How long was she married to her first ex and how long were they divorced before she married the USC husband? How old was the child when she immigrated and how old is the child now?

[Lornaevo 48]

Sounds like fraud to me. 

[geowrian 22,337]

She should wait long enough to show that the marriage is bona fide. That said, showing a bona fide marriage with that kind of history is going to be an uphill climb. It has the earmarks of fraud and overcoming that is not going to be easy.

[Ontarkie 14,227]

I thought there was a waiting period before a new USC who got citizenship by marriage to a USC had to wait before they could petition a new spouse? Something like 2 yrs from when they got citizenship.

[geowrian 22,337]

33 minutes ago, Ontarkie said:

I thought there was a waiting period before a new USC who got citizenship by marriage to a USC had to wait before they could petition a new spouse? Something like 2 yrs from when they got citizenship.

I believe the 5 year waiting period only applied for LPRs (at least the presumption of fraud...not that they won't look at the situation closely for a USC anyway).

Or was there something specific for a USC? I couldn't find any such thing off-hand, but that doesn't mean it doesn't exist.

 

See 21.3 AFM (a)(2)(L) (https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-3481/0-0-0-4484.html):

Marriage within Five Years of Obtaining LPR Status .

Section 204(a)(2)(A) of the Act generally prohibits the approval of a visa petition filed by a lawful permanent resident for a spouse within 5 years of the date on which the petitioner became a LPR if that LPR obtained his or her residence status through a prior marriage. The LPR can overcome this prohibition if he or she establishes by clear and convincing evidence that the prior marriage was not entered into with the purpose of evading the immigration laws, or that the prior marriage ended through death. 8 CFR 204.2(a)(1)(i) specifies the type of evidence which the petitioner must submit to meet the clear and convincing standard. If the petitioner falls within this restriction and has not submitted the requisite evidence, send him or her a letter explaining the deficiency and requesting additional evidence. If satisfactory evidence is not submitted within 60 days (or 120 days if the petitioner has requested and been granted additional time), deny the petition.

Edited January 2, 2018 by geowrian

[Ontarkie 14,227]

8 minutes ago, geowrian said:

I believe the 5 year waiting period only applied for LPRs (at least the presumption of fraud...not that they won't look at the situation closely for a USC anyway).

Or was there something specific for a USC? I couldn't find any such thing off-hand, but that doesn't mean it doesn't exist.

 

See 21.3 AFM (a)(2)(L) (https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-3481/0-0-0-4484.html):

Marriage within Five Years of Obtaining LPR Status .

Section 204(a)(2)(A) of the Act generally prohibits the approval of a visa petition filed by a lawful permanent resident for a spouse within 5 years of the date on which the petitioner became a LPR if that LPR obtained his or her residence status through a prior marriage. The LPR can overcome this prohibition if he or she establishes by clear and convincing evidence that the prior marriage was not entered into with the purpose of evading the immigration laws, or that the prior marriage ended through death. 8 CFR 204.2(a)(1)(i) specifies the type of evidence which the petitioner must submit to meet the clear and convincing standard. If the petitioner falls within this restriction and has not submitted the requisite evidence, send him or her a letter explaining the deficiency and requesting additional evidence. If satisfactory evidence is not submitted within 60 days (or 120 days if the petitioner has requested and been granted additional time), deny the petition.

For some reason I thought I ready it applied to USC who got it citizenship at 3 yrs. I must have misread it. 

[janet3 1,170]

This is the one scam the US government warns about for "Algerian love scams". 

Please....by all means....she should remarry her true husband in their own country.....

Good luck. 

[sevimli 12]

It sounds more like your friend is actually "you"... and this is called immigration fraud. 

[Boiler 45,525]

Simple solution would be to move to her ex and her child, one moving is easier than two and no issues.