Does the 2 year marriage determination for IR-1 versus CR-1 apply when you file or when you receive the visa?

[CyberSamurai013 69]

Hello,

 

My wife and I have an unusual situation and I was curious about how it will affect her spousal visa. Here is a quick timeline of our major life events together. I know most of this is irrelevant to my question but I wanted to give an overview of the entire situation as USCIS will see it.  

 

- She came to America from Russia on a K-1 in 2011.

- We married in America within the 90 days and she received a TLR (conditional 2 year 'green card')

- We had a child together in America in 2012.

- We separated and she moved back to Russia just prior to us filing the AOS, so we never filed it.

- She got a divorce in Russia in 2015 which we never had adopted in America ( I know that it is still recognized by America regardless). 

- We resumed our relationship and I moved to Russia in 2015.

- We had a second child together in Russia in 2019.

- We remarried in Russia in 2021.

- I received my PRP (permanent residence permit) in Russia in 2021.

- We are about to file the I-130 from Russia this year in 2022 and then upon approval return to America as a family (Both of our children have dual citizenship with both Russian and American passports).

 

We plan to file the I-130 within the next month or so but we will have only been married (the second time) for a year. I assume they will use the most recent marriage date for visa purposes. If processing takes a year or longer, do they consider us married for the two years? will we receive a CR-1 or an IR-1? I read someplace that the determination is made when the visa is issued but I do not know if that is accurate or not. If they issue her a CR-1 then do we have to wait the full two years after that to file an AOS or can we change it as soon as we have been married for two years? I found this which makes it sound like the day we enter America will be the determining factor. So if we have been married for two years by the day we come to America then we get the IR-1 instead of the CR-1? Also, will they give her some kind of visa prior to entry then the 'green card' after entry like they did with the K-1? It actually just dawned on me that CR-1/IR-1 is actually the visa to enter the country then you get the 'green card' after just like the K-1, correct?

 

We appreciate any positive feedback and/or advice, thank you!

 

Sincerely.

 

Christopher

[Allaboutwaiting 2,503]

The visa will be issued as CR1 if approved before the two year anniversary. 

If you both enter after the 2 year anniversary even if it was issued as CR1, your wife should receive the 10 year GC.

If you enter the US before the 2 year anniversary, the GC will be conditional and you'll need to file for ROC 2 years after entry. 

 

The visa becomes the GC once you enter and ideally, you should receive the actual card some months after -could take up to 2 years-.

Edited January 8, 2022 by Allaboutwaiting

[iwannaplay54 985]

It is applied as of the date the beneficiary becomes a PR, which on an immigrant visa is the date of US entry.

If US entry is on or after the two year anniversary, a 10-yr card is issued

Occasionally an error is made in the back room where the envelope is opened.  If a CR visa is issued and entry is after that two year mark it is worth pointing that out to the IO who is processing the beneficiary at the point of entry.

Edited January 8, 2022 by iwannaplay54

[CyberSamurai013 69]

Thank you both for your replies and answers! We greatly appreciate it!