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Can apply for US Citizenship after divorce under 3 years time frame. And apply for K1 visa for a non US citizen and remarry.

Norcross, GA |

Hi, recently in Sep 2010 got my permanant Green Card, and my wife is US Citizen. We have been married for 5 years with good faith but have been seperated for about 1 year and 3 months (incl. 5 yrs)but still married. But now she has filled divorce which has not been finalized yet. As I know my Green Card Status is valid for 10 years and as will not effect my Green Card Status. I need to know, One that after granting the divorce decree, can I able to remarry and file a petition I-30 for a non US national to bring her in United States and then marry her. Second, did I lost the 3 years time frame privelage to apply for citizenship? and have to go for 5 years option. As still married since July 2005, but been seperated for more than a year and the divorce case is in the court not finalize yet.

Attorney Answers 3

Posted

To answer your questions, (1) Yes, you may marry after the Final Judgment of Divorce is granted and petition to have your wife come to the U.S. However, since you are not a U.S. citizen, it will take longer for your wife to be able to enter the U.S.

(2). You are eligible to apply for U.S. Citizenship after 3 years, but you must be still married AND living together. If you are separated and not living together before 3 years after receiving the Green Card, you will have to wait for the 5 year option.

Good luck to you.

Immigration Legal Team
Bogle & Chang, LLC
Email: ntb@boglechang.com
Phone: (800) 342-1733 ext. 101
Web: www.immigrationlegalteam.com
National Immigration Lawyers

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Posted

In your circumstances, you will have to wait until you have been a permanent resident for 5 years before you can apply for US citizenship because you will not be living with and married to a US citizen for the three years prior to filing the application for naturalization.

Once your divorce is final, you will be able to remarry. You will not be able to file an I-130 to bring someone to the US to marry - you have to be married first. Also, because you gained permanent resident status by virtue of a prior marriage to a US citizen, you have a high burden to prove that you did not get your permanent resident status by virtue of a fraudulent marriage. In the I-130 you file for your second wife, you will have to very clearly demonstrate how your first marriage was not fraudulent. This is the case if you file the I-130 within 5 years of becoming a permanent resident through your first marriage. If 5 years or more have passed, then you no longer have the higher burden.

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Posted

In addition to the information provided in the other responses to your question, note that current immigration laws do not establish a visa category for fiancees of a U.S. Lawful Permanent Resident. If after becoming divorced you were to marry your fiance abroad, then you could apply for her to get immigration benefits in the family based Second Preference Part A category. For people from most countries, visas are now current for people with priority dates as recent as April, 2010 -- that may be a worthwhile guide to estimate the amount of time necessary for a new petition.

[Note: Consistent with Avvo policy, this communication is intended as general information and not specific legal advice, and this communication does not create an attorney-client relationship.]

David N. Soloway
Frazier, Soloway & Poorak, P.C.
1800 Century Place, Suite 100
Atlanta, Georgia 30345 www.fspklaw.com
404-320-7000 * 1-877-232-5352 * dsoloway@fspklaw.com

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