Various Questions Related to K1/K2--Assistance Please

[aaron2020 11,651]

14 minutes ago, HRQX said:

That is generally incorrect. The law of the place of marriage celebration determines if its valid, not where the beneficiary lives. https://fam.state.gov/fam/09FAM/09FAM010208.html

If the law in that specific place/state doesn't allow remarriage within a certain timeframe in that same specific place/state that has no effect on the laws of other "country or in another part of Mexico."

There is a distinction between where a marriage is legal and where a divorce is legal.

Her divorce where she lives holds that she is not free to marry.  Therefore, going to another jurisdiction does not negate the holding of her divorce.  

At the time of marriage, she was not free to marry based on HER DIVORCE DECREE and thus can not enter into another marriage anywhere else.

[HRQX 4,145]

3 minutes ago, aaron2020 said:

Her divorce where she lives holds that she is not free to marry.

That is not certain. OP hasn't shared the exact jurisdiction. Thus why I also said:

33 minutes ago, HRQX said:

Where exactly would she divorce? https://mx.usembassy.gov/marriage/ "As in the United States, each state in Mexico determines marriage and divorce procedures for that state." Need to see the exact section of the relevant law; i.e. "Ley de Registro Civil"

[Boiler 45,670]

I am taking the OPs word for the legalities as far as remarriage is concerned and I am sure the Consulate know

 

This is one of those few cases where a K makes sense in that it allows most likely the middle child to immigrate.

[aaron2020 11,651]

32 minutes ago, HRQX said:

That is not certain. OP hasn't shared the exact jurisdiction. 

OP has stated that her state requires a one year waiting period after the divorce to be able to marry.

[HRQX 4,145]

1 minute ago, aaron2020 said:

OP has stated that her state requires a one year waiting period after the divorce to be able to marry.

Yeah, and then I followed up by asking for the specific state because the relevant law section matters.

[jerika 0]

Thank you for continuing to further consider my situation. Her state is Nayarit.

[HRQX 4,145]

8 minutes ago, jerika said:

Her state is Nayarit.

Then it'll depend on how the divorce judge orders: http://www.tsjnay.gob.mx/wp-content/uploads/revista56-1.pdf "Para efectos del divorcio voluntario, al existir el consentimiento de ambos cónyuges en separarse y una ausencia de cónyuge culpable, no se deben sujetar a tiempos de espera para que vuelvan a contraer nuevo matrimonio."

[Demise 1,298]

10 hours ago, jerika said:

Any input about any of the following would be greatly appreciated as I do not want to make a mistake.

1. I am a US citizen. My divorce will be final in 2/2022.
2. I am now in a relationship with a Mexican citizen that is in Mexico that is getting a divorce (not sure of final date, but it will be after mine). She has three children (4, 17, 19).
3. Her state in Mexico requires at least one year from divorce to get married again.
4. Once both divorces are final, can she come to the US on a K1 visa with her three children on K2 visas, we quickly get legally married at a courthouse in California, we all travel to Mexico very soon after and have a symbolic wedding there, then we all come back to the US and her along with her three kids apply for adjustment of status to get all four of them green cards?
5. Will Mexico recognize the marriage as valid if she did not wait one year to get re-married in the US? Or, does getting re-married in the US get around that?
6. I read about how you can travel from the US to Mexico or Canada for 30 days or less on a K1 visa during the 90-day window. Can her kids on K2 visas do the same? Can we they all do this both before and after the marriage takes place as long as it is within the90-day window?
7. Does filing for adjustment of status require that they not leave the US until that is finalized? I am not sure where to fit that step in on #4.

 

Thank you very much!!!

1-3. Not questions

4. They get the K-1/2 visas. Come to US, marry, all of them file for AOS, after they get advance parole as a part of the adjustment application, that's when you can have your celebration in Mexico. Also, not sure if there's enough time to get the 19 year old into US and through AOS in time. K-2s are allowed to AOS if the marriage took place after they turned 18, but they are not protected by CSPA meaning that their green card has to be issued by the time they're 21. You can try to get expedites for the I-129F, DS-160, and I-485 on the basis of impending age-out but that stuff is honestly a mess especially that you'd have to request it 3 times.

5. I'm not sure but it doesn't matter. US will consider the marriage to be legitimate.

6. You read wrong. K-1 and K-2 are single admission visas. If they travel out without advance parole they'd need new visas (either another K-1/2 or CR-1/2 depending on whether or not you married).

7. They cannot leave until they get approved for advance parole.

Edited October 10, 2021 by Demise

[HRQX 4,145]

1 hour ago, Demise said:

K-2s are allowed to AOS if the marriage took place after they turned 18, but they are not protected by CSPA meaning that their green card has to be issued by the time they're 21.

That last part is incorrect because of Matter of Le: https://www.nolo.com/legal-encyclopedia/timing-issues-when-k-2-child-fiance-visa-holder-will-turn-21-before-adjusting-status.html

Under the BIA's 2011 decision in Matter of Le, K-2 visa holders can apply for adjustment of status after turning 21 if their last admission to the U.S. was before their 21st birthday.

 

at least one court (the Fourth Circuit) has refused to deviate from the BIA's decision, and others are likely to follow suit. (See the 2014 case of Regis v. Holder.)

 

This was previously mentioned on the first page of this thread:

6 hours ago, HRQX said:

Must be "under 21 when you were admitted to the United States as a K-2 nonimmigrant" https://www.uscis.gov/green-card/green-card-processes-and-procedures/child-status-protection-act-cspa

Edited October 10, 2021 by HRQX

[Demise 1,298]

1 hour ago, HRQX said:

That last part is incorrect because of Matter of Le: https://www.nolo.com/legal-encyclopedia/timing-issues-when-k-2-child-fiance-visa-holder-will-turn-21-before-adjusting-status.html

Under the BIA's 2011 decision in Matter of Le, K-2 visa holders can apply for adjustment of status after turning 21 if their last admission to the U.S. was before their 21st birthday.

 

at least one court (the Fourth Circuit) has refused to deviate from the BIA's decision, and others are likely to follow suit. (See the 2014 case of Regis v. Holder.)

 

This was previously mentioned on the first page of this thread:

 

Huh, thanks for letting me know, I have no idea how I missed this precedent.

 

So yeah OP, as long as the 19 year old gets her K-1 before turning 21, she'll be able to AOS, that still makes it a tight but actually feasible timeframe.

[JeanneAdil 6,561]

If she has to wait a year from final divorce degree to marry (at all) then i would marry in Mexico and go thru the spousal  visa as it is far superior to the K1

 

u were thinking K1 to bypass the year's wait but if u can't , then think CR1

[aaron2020 11,651]

27 minutes ago, JeanneAdil said:

If she has to wait a year from final divorce degree to marry (at all) then i would marry in Mexico and go thru the spousal  visa as it is far superior to the K1

 

u were thinking K1 to bypass the year's wait but if u can't , then think CR1

In this case, the CR1 is not the superior choice.  

By the time he can apply for a CR-1 and CR-2, the only child under 18 would be the youngest.  The middle child would be 18.  He would only be able to petition for his wife and the youngest child.  The middle child would need to wait for mom to be an LPR and petition for him in the F2a category.  And if he turns 21, it's gonna be the F2b category.  

 

If he goes the K-1 route, the middle child can immigrate with mom.