Prior Divorce

[Dilong]

Hello All:
I have a question about how a prior divorce affects the VISA process. I have been living in China for about 2 years and dating a Chinese girl. She was technically still married when we first fell in love and started dating, though the marriage was almost non-existent. He was gone a majority of the time and they barely interacted with each other. She has finally gotten a divorce and now we are planning to begin the VISA process in pursuit of a fiance visa. My question is, would it be better for us to wait another year before starting the process since a large part of our relationship was spent together when she was still married, on paper. I imagine that it might look like she is just trying to get out of the prior marriage and marry me to get to America. That is, of course, not the case at all. I would have no issue with this and would gladly wait another year before beginning this process, except that I will need to go back to the US to begin a new job. So if we should wait we will have to spend close to a year apart while the VISA processes, I guess. I don't like the idea of being apart so long. But I also don't want to try to push this through and ruin a chance at a VISA altogether.Does anyone have some experience in this matter or advice about it? Thanks for your help.

[Shenzhen K-1]

Hello All:

I have a question about how a prior divorce affects the VISA process. I have been living in China for about 2 years and dating a Chinese girl. She was technically still married when we first fell in love and started dating, though the marriage was almost non-existent. He was gone a majority of the time and they barely interacted with each other. She has finally gotten a divorce and now we are planning to begin the VISA process in pursuit of a fiance visa. My question is, would it be better for us to wait another year before starting the process since a large part of our relationship was spent together when she was still married, on paper. I imagine that it might look like she is just trying to get out of the prior marriage and marry me to get to America. That is, of course, not the case at all. I would have no issue with this and would gladly wait another year before beginning this process, except that I will need to go back to the US to begin a new job. So if we should wait we will have to spend close to a year apart while the VISA processes, I guess. I don't like the idea of being apart so long. But I also don't want to try to push this through and ruin a chance at a VISA altogether.Does anyone have some experience in this matter or advice about it? Thanks for your help.

 

D many here will give you there thoughts and some good advice. But from my reading here in many different sections a I-129F that close to her being divorced might raise some red flags!! It will be 10-11.5 months as of right now even if you do a K-3 or K-1??

 

Good luck here, Mark! B)

[credzba]

If your living and working in China now, why not marry, and file dcf there in China. total time is only about 6 months for DCF, and much longer here in the states

[jim_julian]

It shouldn't be a problem. The USCIS only cares that you are eligible to marry (K-1) or married (many types) when you file.

 

You can see from our timeline that I knew Lao Po long before the divorce was final and filed shortly thereafter.

[Guest Rob & Jin]

Same with us filed 2 weeks after divorce became final. Hope it wont be a problem for our friends at GUZ.

Edited January 10, 2008 by Rob & Jin (see edit history)

[chilton747]

It shouldn't be a problem. The USCIS only cares that you are eligible to marry (K-1) or married (many types) when you file.

 

You can see from our timeline that I knew Lao Po long before the divorce was final and filed shortly thereafter.

 

Jim I find that your case is an exception as to many others here. It is clear to me that if the "officials" want to use this situation as a means of suspect then they will. This is just my observation over the years.

Edited January 10, 2008 by chilton747 (see edit history)

[Dilong]

Thanks for the input everyone. As for the DCF, it is also a possibility. We are both looking for a way to take it a little slower than immediately jumping into marriage. We saw the fiance visa as our best bet, though I know it only gives us an extra 4 months. Are there any drawbacks to the DCF? When we apply for her visa will she be required to show any documentation of being married prior, or will the consulate only see whether she is currently single or not? Thanks again for the help.

[MikeandRong]

Thanks for the input everyone. As for the DCF, it is also a possibility. We are both looking for a way to take it a little slower than immediately jumping into marriage. We saw the fiance visa as our best bet, though I know it only gives us an extra 4 months. Are there any drawbacks to the DCF? When we apply for her visa will she be required to show any documentation of being married prior, or will the consulate only see whether she is currently single or not? Thanks again for the help.

 

DCF will require that you are married in order to file.

[Dilong]

If her visa application is rejected will we have another chance down the road to try again? Or does one rejection mean you can never try for another visa? Thanks.

[dnoblett]

DCF will require that you are married in order to file.

The US Citizen also has to be in China on a resident type visa, not a visitor.

 

DOS policy is 6 months resident in the counselor district.

 

http://www.state.gov/r/pa/prs/ps/2007/mar/82030.htm

 

If her visa application is rejected will we have another chance down the road to try again? Or does one rejection mean you can never try for another visa? Thanks.

Not so, a rejection can be one of two outcomes, first is a Blue slip requesting additional evidence to be filed, you provide them what they want and they usually approve the visa. The other is more serious, the counselor officer rejects it outright (NOID) and the case gets sent back to USCIS, in this case you have a short time to try to get a lawyer in China to fight it. Or you will have to get it overcome at USCIS, there will be a note on file that can and does prevent future visas from being approved.

[chilton747]

If her visa application is rejected will we have another chance down the road to try again? Or does one rejection mean you can never try for another visa? Thanks.

Not so, a rejection can be one of two outcomes, first is a Blue slip requesting additional evidence to be filed, you provide them what they want and they usually approve the visa. The other is more serious, the counselor officer rejects it outright (NOID) and the case gets sent back to USCIS, in this case you have a short time to try to get a lawyer in China to fight it. Or you will have to get it overcome at USCIS, there will be a note on file that can and does prevent future visas from being approved.

 

 

Dan do you know of a specific case(s) where there has been a "note" that has prevented a future visa from being approved?

[dnoblett]

If her visa application is rejected will we have another chance down the road to try again? Or does one rejection mean you can never try for another visa? Thanks.

Not so, a rejection can be one of two outcomes, first is a Blue slip requesting additional evidence to be filed, you provide them what they want and they usually approve the visa. The other is more serious, the counselor officer rejects it outright (NOID) and the case gets sent back to USCIS, in this case you have a short time to try to get a lawyer in China to fight it. Or you will have to get it overcome at USCIS, there will be a note on file that can and does prevent future visas from being approved.

Dan do you know of a specific case(s) where there has been a "note" that has prevented a future visa from being approved?

 

Some reading of by Marc Ellis a prominent immigrations attorney article.

 

Lawyers ¨C Be Careful Here!

 

Now in many cases where a K-1 has been delayed, refused or denied at a US Consulate, lawyers have advised clients to simply get married and file and I-130. That is not good advice, unless the attorney also advises the petitioner to pay close attention to the K-1 that has been sent back to the Service Center from the consulate.

 

If a Service Center begins a revocation proceeding for that K-1 petition, a petitioner¡¯s failure to respond will mean that DHS will revoke the approval of the petition. When that happens, the 212(a)(6)(c )(i) that is pending in our beneficiary file, will become hard finding of Misrepresentation, under 9 FAM 40.63 N10.1 (above).

 

A Rude Surprise at the Second Consular Interview

 

Our love birds have followed their lawyer¡¯s advice and forgotten about the K-1 petition. A NOID (Notice of Intent to Deny) letter comes in the mail and petitioner calls his lawyer. The lawyer says,

 

¡°Don¡¯t worry about it. She¡¯s your wife now. The K-1 petition is irrelevant.¡±

 

The lovebirds have taken the plunge and married. The petitioner has made another costly visit to the foreign country; bought another round trip airplane ticket, and maybe he has even sprung for a costly wedding ceremony.

 

An I-130 Petition for his new bride has been filed. And it is approved by the DHS Service Center. What will happen when his new wife appears at the US Consulate for her next interview?

 

Because the petitioner did not respond to the K-1 revocation notice, the beneficiary has a 212(a)(6)(c )(i) finding on her record. Even if the petition for her is approved, she is permanently barred from entering the US, unless she can obtain a waiver to that ground of inadmissibility.

http://www.ilw.com/articles/2006,0323-ellis.shtm

[Randy W]

If her visa application is rejected will we have another chance down the road to try again? Or does one rejection mean you can never try for another visa? Thanks.

Not so, a rejection can be one of two outcomes, first is a Blue slip requesting additional evidence to be filed, you provide them what they want and they usually approve the visa. The other is more serious, the counselor officer rejects it outright (NOID) and the case gets sent back to USCIS, in this case you have a short time to try to get a lawyer in China to fight it. Or you will have to get it overcome at USCIS, there will be a note on file that can and does prevent future visas from being approved.

Dan do you know of a specific case(s) where there has been a "note" that has prevented a future visa from being approved?

 

Some reading of by Marc Ellis a prominent immigrations attorney article.

 

Lawyers ¨C Be Careful Here!

 

Now in many cases where a K-1 has been delayed, refused or denied at a US Consulate, lawyers have advised clients to simply get married and file and I-130. That is not good advice, unless the attorney also advises the petitioner to pay close attention to the K-1 that has been sent back to the Service Center from the consulate.

 

If a Service Center begins a revocation proceeding for that K-1 petition, a petitioner¡¯s failure to respond will mean that DHS will revoke the approval of the petition. When that happens, the 212(a)(6)(c )(i) that is pending in our beneficiary file, will become hard finding of Misrepresentation, under 9 FAM 40.63 N10.1 (above).

 

A Rude Surprise at the Second Consular Interview

 

Our love birds have followed their lawyer¡¯s advice and forgotten about the K-1 petition. A NOID (Notice of Intent to Deny) letter comes in the mail and petitioner calls his lawyer. The lawyer says,

 

¡°Don¡¯t worry about it. She¡¯s your wife now. The K-1 petition is irrelevant.¡±

 

The lovebirds have taken the plunge and married. The petitioner has made another costly visit to the foreign country; bought another round trip airplane ticket, and maybe he has even sprung for a costly wedding ceremony.

 

An I-130 Petition for his new bride has been filed. And it is approved by the DHS Service Center. What will happen when his new wife appears at the US Consulate for her next interview?

 

Because the petitioner did not respond to the K-1 revocation notice, the beneficiary has a 212(a)(6)(c )(i) finding on her record. Even if the petition for her is approved, she is permanently barred from entering the US, unless she can obtain a waiver to that ground of inadmissibility.

http://www.ilw.com/articles/2006,0323-ellis.shtm

 

 

This is one case - it does NOT mean that EVERYONE who has been white-slipped will be denied for subsequent applications, or that this particular paragraph even applies.

 

The problem the "love birds" faced is NOT that they were white-slipped, but that they left the previous application open "If a Service Center begins a revocation proceeding for that K-1 petition"

 

212(a)(6)(c )(i)

 

C ) Misrepresentation.-

 

( i ) In general.-Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

Edited January 10, 2008 by Randy W (see edit history)

[chilton747]

If her visa application is rejected will we have another chance down the road to try again? Or does one rejection mean you can never try for another visa? Thanks.

Not so, a rejection can be one of two outcomes, first is a Blue slip requesting additional evidence to be filed, you provide them what they want and they usually approve the visa. The other is more serious, the counselor officer rejects it outright (NOID) and the case gets sent back to USCIS, in this case you have a short time to try to get a lawyer in China to fight it. Or you will have to get it overcome at USCIS, there will be a note on file that can and does prevent future visas from being approved.

Dan do you know of a specific case(s) where there has been a "note" that has prevented a future visa from being approved?

 

 

 

Some reading of by Marc Ellis a prominent immigrations attorney article.

 

Lawyers ¨C Be Careful Here!

 

Now in many cases where a K-1 has been delayed, refused or denied at a US Consulate, lawyers have advised clients to simply get married and file and I-130. That is not good advice, unless the attorney also advises the petitioner to pay close attention to the K-1 that has been sent back to the Service Center from the consulate.

 

If a Service Center begins a revocation proceeding for that K-1 petition, a petitioner¡¯s failure to respond will mean that DHS will revoke the approval of the petition. When that happens, the 212(a)(6)(c )(i) that is pending in our beneficiary file, will become hard finding of Misrepresentation, under 9 FAM 40.63 N10.1 (above).

 

A Rude Surprise at the Second Consular Interview

 

Our love birds have followed their lawyer¡¯s advice and forgotten about the K-1 petition. A NOID (Notice of Intent to Deny) letter comes in the mail and petitioner calls his lawyer. The lawyer says,

 

¡°Don¡¯t worry about it. She¡¯s your wife now. The K-1 petition is irrelevant.¡±

 

The lovebirds have taken the plunge and married. The petitioner has made another costly visit to the foreign country; bought another round trip airplane ticket, and maybe he has even sprung for a costly wedding ceremony.

 

An I-130 Petition for his new bride has been filed. And it is approved by the DHS Service Center. What will happen when his new wife appears at the US Consulate for her next interview?

 

Because the petitioner did not respond to the K-1 revocation notice, the beneficiary has a 212(a)(6)(c )(i) finding on her record. Even if the petition for her is approved, she is permanently barred from entering the US, unless she can obtain a waiver to that ground of inadmissibility.

http://www.ilw.com/articles/2006,0323-ellis.shtm

What I was wondering is if you personally knew of one case where the beneficiary was permanently barred and unsuccessfully tried for a waiver. Mr Ellis's article points out pitfalls and how to avoid them. He is not saying that getting married after a failed K1 will necessarily result in a denial for a future petition.

[ameriken]

Same with us filed 2 weeks after divorce became final. Hope it wont be a problem for our friends at GUZ.

Based on Rob & Jin and Jim Julians response, I dont think filing so close to a divorce will hinder, delay, alter or stop the process in any way.

 

As for the interview, it is possible the question could be raised by the VO (or not), but with the explanation of your 2 year relationship, that the prior marriage was dead, and with the necessary documentation and evidence proving a genuine relationship, I agree that this should not pose a problem at all.

 

Personally, I'd rather take the chance of applying now and spending the next year waiting for the visa, rather than waiting a year just to apply on something that you are legally allowed to do anyway. And I personally like the idea of a K1, rather than marrying right away, I think that weighs in your favor.

Edited January 10, 2008 by ameriken (see edit history)