November 24, 2008: U.S. Citizen Divorces, Remarries, and Files For New Spouse

US Citizen Divorces, Remarries and Files For New Spouse

Hi! I became a US citizen this year in August after I was married to the same US citizen for three years. My wife filed the divorce papers and now my marriage is legally terminated. My lawyer told me that if I marry my girlfriend who is from overseas I cannot file the I-130 petition on her behalf until it is five years since I got my residency even though I am a US citizen now. Is this true? (I have a naturalization certificate.) Thank you.
— Anonymous

There is no law that requires that you wait five years before you can get married to another woman and file an I-130 petition on your new wife’s behalf. You will have to disclose your prior marriage on the I-130 petition and you will have to prove that your marriage to your ex-spouse is now terminated by providing a certified copy of the divorce decree.

As for filing for your girlfriend/wife, you have several options. You may file a K-1 petition if you don’t get married now but intend to get married in the United States within 90 days of her entry, a K-3 petition if you get married outside the United States and want to file for adjustment of status in the United States, or consular process by getting married and having her immigrate with an immigrant visa. However, if your facts are correct, there appears to be another issue.

How did you become a US citizen if your marriage to the petitioning ex-wife only lasted three years? By rule, permanent residents are eligible to file for citizenship two years and nine months from the date their green card (not marriage) was issued if the Applicant can prove that s/he is still married to and living with the same US citizen spouse during that period. And the two year and nine month period does not include the processing delays for the permanent resident application or the Application for Naturalization, which are anywhere from 6 months to more than a year.

It would be wise for you to consult with an immigration attorney with extensive experience with family-based immigration matters to review your immigration documents and advise you on all of your options and potential problems that you may face in your upcoming case.

Michael Shane and Evan Shane, Immigration Attorneys