October 19, 2009: Can This Petitioner File For Another Spouse?

Can This Petitioner File For Another Spouse?

I am recently divorced. I met a man who I am interested in marrying but, I am concerned. I filed for my ex-husband to get his green card and I wanted to find out if I file for this man to get a green card who is here on an expired visa, will there be a problem? I cannot help that I have fallen in love with yet another man who is not a legal resident, but this man is the best thing that has ever happened to me and I do not want to lose him. My ex-husband’s citizenship was denied because we were not living together at the time he applied. We have been married for over 5 years so he reapplied without me. I was wondering will the application be flagged because my name is in the system with my ex-husband? How long should I wait in between filing for there not to be a problem? Will they make my new fiance go back to his country and re-enter or if we are married will they allow him to stay? I do not want to do a Fiance visa. We would get married and then apply.
— Anonymous

When a United States citizen petitioner files a Form I-130, Petition for Alien Relative, the petitioner must list all previous marriages on the form of both the petitioner and beneficiary. The petitioner must also submit a photocopy of the final divorce decrees with the filing. There is also a question on page two of the I-130 that asks the petitioner whether s/he has ever filed an I-130 petition for this or any other alien relative.

In this particular fact pattern, you will have to disclose that you previously filed an I-130 petition on behalf of your former spouse. You will have to include when and where you filed it and the outcome. You can file the I-130 petition at any time after your legal marriage to your current spouse. When you and your current spouse appear for the marriage interview at your local United States Citizenship and Immigration Services (USCIS) Field Office, the Field Officer conducting the interview will review the I-130 petition will know about your previous petition. In some circumstances, the Field Officer may ask you questions about the circumstances surrounding your first marriage.

However, just because you filed an I-130 petition for your first spouse does not mean that the officer will not approve the current I-130 petition. Every case is evaluated on a case-by-case basis and so long as the first marriage was bona fide at its inception, and you can prove the same for your current marriage, then you should not have a problem. So long as the immigration laws are followed, there is no limit to the number of I-130 petitions a United States citizen can file on behalf of alien relatives.

On another note, if your spouse is currently out of status and he leaves the United States to pursue his immigrant visa, then he may trigger the 3 or 10 year bar to admission to the United States. Before filing any forms with USCIS or having your spouse travel abroad, it may be wise for you to consult with an immigration attorney with extensive experience in family immigration.

Michael Shane and Evan Shane, Immigration Attorneys