Can Second Marriage Adjustment be Filed?

Can Second Marriage Adjustment be Filed?

I had a prior marriage where my spouse refused to attend the adjustment of status interview. Subsequently case was denied in 2004. I met a U.S. citizen in 2005 had child in 2007. We got married in 2008. Would we have problems filing a new adjustment of status case based on the previous denial. How long does the process take?

— MB

Generally speaking, just because a person has a previously denied adjustment of status application (Form I-485) does not necessarily mean that the person will be prevented from filing a subsequent adjustment of status application based on a different petitioner. Before filing the new adjustment of status application based on an immediate relative visa petition (Form I-130), it is extremely important to know why the first I-130 petition and I-485 application were denied.

The United States Citizenship and Immigration Service’s (USCIS) should have issued two Decisions, one for the I-130 petition and one for the I-485 adjustment of status application. The Decisions will lay out its reasons for denying the case. If the I-130 decision contains language relating to marriage fraud, circumventing the immigration laws, and convenience marriage allegations among other language relating to a sham marriage, then you may not be eligible for adjustment of status based on a subsequently filed I-130 petition by a different petitioner.

Furthermore, the I-485 decision may provide insight into why the I-130 petition was denied. On another note, if the I-130 was `withdrawn’ by the Petitioner or was denied for a reason other than a “convenience marriage” finding, then there may not be any impediment for you to be the beneficiary of a subsequently filed I-130 by a different petitioner. Likewise, if the I-485 decision states the reason for the denial was based on your failure to appear for the scheduled interview or for some other reason besides a convenience marriage, then your subsequent I-485 application may be okay.

It is important to note that USCIS has an alien (`A’) file for you and any subsequent filings must include this A-number. Thus, when you appear for your interview based on your marriage to your current husband, the Adjudications Officer will see what had happened in your previous case. If there was a 204(c) finding in the first case, your current case may be denied and your file may be referred to the Immigration Customs and Enforcement (ICE) section of the Department of Homeland Security (DHS) for the issuance of a Notice to Appear before an Immigration Judge for the initiation of deportation proceedings.

As a result, because of the severe consequences of filing a new case where a previous case had been denied, it may be wise for you to consult with an experienced immigration attorney with extensive knowledge in family-based immigration before you file any future petitions and applications with USCIS.

Michael Shane and Evan Shane, Immigration Attorneys


Family-Based Immigration

Marriage Immigration

Green Card Petitioner File

Family-Based Visa Petition

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