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Can A U.S. Citizen, If Not Divorced, Immigrate New Spouse?

QUESTIONS AND ANSWERS

My Husband’s I-130 Petition Was Denied Because He Is Not Divorced
From His Ex-Wife. Can I Still Get A Green Card Through Our Marriage?

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Question:

“My husband tried to get me a green card but his papers were rejected. The officer told us that his divorce papers were false. He said our marriage is not valid. In a few weeks, I will get a letter to show up at immigration court. The officer said we can try to explain our story to a judge and if he doesn’t believe my husband, I will be deported. I have lived here without getting into trouble about 10 years. Is there anything we can do?”

(Submitted by Ana V., Adelanto, CA)

Answer:

You are in a difficult spot. Yet, it’s not time to give up hope. There may be a few ways to help you avoid deportation and become a permanent resident.

However, many important details – about your husband’s divorce and your own immigration history – are missing from your comments. As a result, my suggestions are general and might not fit your case.

In brief, here is what I think happened.

It seems you and your husband filed various sets of paperwork with USCIS. This included an immigrant relative visa petition, known as an I-130 petition. and an application for permanent residency, known as an I-485 application.

When you went to the interview, the immigrant relative petition was denied due to problems with your husband’s divorce. Since the I-130 was denied, due to the lack of a valid marriage, the I-485 was denied.

First, let’s talk about your husband’s divorce.

I will assume your husband is a U.S. citizen and his divorce took place in the United States.

I will also assume he did try to get a divorce from his former wife. If he had never tried to divorce her, but he said on the I-130 and I-485 paperwork that he was divorced, then he did not tell the government the truth. That’s really bad. That’s a true fraud.

So in answering your question, I will assume your husband genuinely believed he was divorced – and that the government officer was referring to a honest but careless type of mistake when he told you the divorce papers were false.

You might be wondering, how can that happen? How can someone think they are divorced, but they are not really divorced? Easily. It happens more often than most people think.

Maybe your husband started, but never finished, his divorce papers. If he did not know all the steps for a divorce, he may have missed doing the final paperwork. He thought he had did everything necessary.

Or maybe he finished his divorce papers but did not fill them out correctly.

These are just a few examples.

Anyway, if one of these examples (or something similar) were the reasons that the immigration agent said his papers were false, then your husband can still fix his divorce situation.

He can contact his ex-wife and tell her what the officer told him. He could ask her to help him correctly finish their divorce papers. After all, she probably thinks she is divorced, too, and has perhaps remarried.

On the other hand, he can start over and file new divorce papers now. This might be a better idea if your husband and ex-wife are not on friendly speaking terms, if he does not know where she lives, or if she lives in another city or state.

But . . .

Here comes the punch line.

No matter which way your husband handles his divorce situation, when he is legally divorced, you have to get married again.

Why?

Because if he is not divorced legally, your marriage, like the officer said, is not valid.

By starting over, your new marriage would be a legitimate marriage because his divorce is now legal.

Once you get married again, he can start the immigration process for you once more.

This time, unless there are other problems, his new I-130 family petition for you would be approved.

(Please remember this is a simple version of your situation. It’s based on a few assumptions. There are other facts about your husband’s former marriage and divorce which could change my analysis.)

Second, let’s talk about immigration court.

At immigration court, if you explain the error by your husband, some judges will allow you the time to finish his divorce, get remarried, and file a new immigrant petition for your green card through marriage.

Then, once these steps are completed, you can ask the the court to close your case temporarily while you go back to USCIS for a new interview for permanent residency.

If the judge does not give you more time to take such actions, it appears you might still be eligible to fight your case at immigration court. In particular, if you have lived here 10 years, and you do not have any convictions, you can try to win your case at court under a program called cancellation of removal.

These are hard cases to win. They require a showing of exceptional and extremely unusual hardship to your husband for you to win. They require an exploration of your own immigration history.

You must convince a judge to rule in your favor. In my view, winning these types of cases without an experienced immigration court hearings and trials lawyer, is almost impossible.

In addition, there might be other options available to you at court. This is another reason to speak with an attorney directly about your case.

You cannot afford to make another mistake if you hope to live in the U.S. as a legal resident with your husband. To reduce the risk of separation, it is best for someone in your situation to seek direct legal advice.

Overall, it appears you still have the chance to win a green card. But given your vulnerable situation, you cannot afford to take any chances.

By Carlos A. Batara

(Filed Under Q&As: Family-Based Visas And Immigrant Petitions)

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