Applying For Citizenship -pls Help me on my Case

[geowrian 22,337]

I'd have to agree with pushbrk here. Sorry for joining late!

USCIS goes by precise dates, so it sounds like the application for permanent residence should still have been valid. The IO may need to review the case to confirm dates, though.

Yes, they can review the application for permanent residence with any naturalization application to ensure it was properly approved and there were no inadmissibilities that were missed.

[Villanelle 4,122]

15 minutes ago, geowrian said:

I'd have to agree with pushbrk here. Sorry for joining late!

USCIS goes by precise dates, so it sounds like the application for permanent residence should still have been valid. The IO may need to review the case to confirm dates, though.

Yes, they can review the application for permanent residence with any naturalization application to ensure it was properly approved and there were no inadmissibilities that were missed.

Can you explain a bit why you agree. I am still unsure and I feel like Im missing something. Doesnt USCIS go by the current facts at the time of adjudication and not current fact at time of submission when it comes to determining if someone is still an eligible derivative?

[geowrian 22,337]

3 minutes ago, Damara said:

Can you explain a bit why you agree. I am still unsure and I feel like Im missing something. Doesnt USCIS go by the current facts at the time of adjudication and not current fact at time of submission when it comes to determining if someone is still an eligible derivative?

My understanding is the same. But unless I missed something (sorry if so!) on the date the green card was issued, they still qualified for the benefit. Or did I miss something obvious/stupid here (joined late so I may have read the prior replies too quickly?)?

[Villanelle 4,122]

Just now, geowrian said:

My understanding is the same. But unless I missed something (sorry if so!) on the date the green card was issued, they still qualified for the benefit. Or did I miss something obvious/stupid here (joined late so I may have read the prior replies too quickly?)?

The same day the GC was issued they had a divorce decree issued. 

Ugh I was trying to quote it but it linked it instead. This is her timeline.

[Villanelle 4,122]

Her questions are about getting married again to someone from India. She has not applied for citizenship but can very soon. If she applies for citizenship they will look at her marriage correct? because it was a marriage based benefit. If she does the 130 for her future spouse- will they also look at the way she got her GC? If yes will it be an issue?

[geowrian 22,337]

They will look at the marriage, but since it's based on 5 years rule, the onus is on them to show that the past benefit was incorrectly obtained (i.e. that they were not married at the time of adjudication - which I believe she was still considered married despite divorcing that same day). The marriage being bona fide is not something they typically look at again based on the 5 years unless their is some compelling reason indicating that it likely was not bona fide.

At the very least, it would not be fraudulent since they had not finalized the divorce so no false statements were made. As such, even if they were to have somehow been deemed incorrectly issued (but not fraudulently done so), the 5 year statute of limitations would probably apply.

 

The I-130 may post the bigger risk IMO. Until it's been 5 years, as you noted, it's generally prohibited without very compelling evidence that the prior marriage was bona fide. I wouldn't suggest trying to go down that route. Even once a citizen and/or 5 years have passed, I would be surprised if the entire past marriage/divorce timeline was not considered.

Edited September 10, 2018 by geowrian

[rp36 0]

geowrian,

 

Thank you ,Thank you Damara and Pushbrk..

 

I didn't understand the below --

"The I-130 may post the bigger risk IMO. Until it's been 5 years, as you noted, it's generally prohibited without very compelling evidence that the prior marriage was bona fide. I wouldn't suggest trying to go down that route. Even once a citizen and/or 5 years have passed, I would be surprised if the entire past marriage/divorce timeline was not considered."

 

Can you please explain bit more ..

[geowrian 22,337]

Just now, rp36 said:

I didn't understand the below --

"The I-130 may post the bigger risk IMO. Until it's been 5 years, as you noted, it's generally prohibited without very compelling evidence that the prior marriage was bona fide. I wouldn't suggest trying to go down that route. Even once a citizen and/or 5 years have passed, I would be surprised if the entire past marriage/divorce timeline was not considered."

 

Can you please explain bit more ..

The INA prohibits approving an I-130 for a spouse filed by a green card holder who obtained their green card through a marriage unless they have had their green card for 5 years. My understanding is this applies to derivative beneficiaries the same as primary ones (i.e. those who obtained a spousal visa) since no distinction is made in the wording of the provision that I can see.

 

See AFM 21.3(a)(2)(L):

"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."

 

INA 204(a)(2)(A) https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-1272.html#0-0-0-1787:

"(2) (A) The Attorney General may not approve a spousal second preference petition for the classification of the spouse of an alien if the alien, by virtue of a prior marriage, has been accorded the status of an alien lawfully admitted for permanent residence as the spouse of a citizen of the United States or as the spouse of an alien lawfully admitted for permanent residence..."

[NancyLyz 58]

14 hours ago, rp36 said:

geowrian,

 

Thank you ,Thank you Damara and Pushbrk..

 

I didn't understand the below --

"The I-130 may post the bigger risk IMO. Until it's been 5 years, as you noted, it's generally prohibited without very compelling evidence that the prior marriage was bona fide. I wouldn't suggest trying to go down that route. Even once a citizen and/or 5 years have passed, I would be surprised if the entire past marriage/divorce timeline was not considered."

 

Can you please explain bit more ..

In short, the gap between two marriages may be too short (hence the LPR 5 year general requirement) for USCIS to recognize both as bona fide marriages, which is up to their own decisions. USCIS may ask for more evidence and scrutinize you more during the interviews (since now almost all green card applications go through interviews).  

 

I'd say either you take the risk of becoming a citizen first before filing 130 for your current spouse (or k1 if you plan to get married), or you wait until you pass the 5 year mark (preferably well past that) and file for 130 for your current spouse, waiting for the PD to be current. Either route is not going to be a quick one. Good luck with that.