October 26, 2009: Is There a Waiting Period for Filing a Visa Petition?

Is There a Waiting Period to File a Visa Petition?

I became a U.S permanent resident through marriage to a U.S. citizen. My marriage was broken after 3 1/2 years. My husband filed for divorce, and I did not become a citizen until 5 years after being a LPR. I met this guy who is out of status and we are making plans to get married. Someone just told me I can not file an I-130 petition for him until I have been a citizen for 2 years. Is this correct?
— Anonymous

Generally, once a person becomes a naturalized United States citizen, s/he may immediately file an I-130 visa petition on their spouse’s behalf. In fact, a naturalized U.S. citizen may file an I-130 petition on behalf of a parent, child, and/or sibling. As for filing for a spouse, the previous marriage must be legally terminated and you must be legally married your spouse.

On the I-130 petition, you must disclose your previous marriage and provide proof of the legal termination. You will also have to provide proof of your current legal marriage in the form of a marriage certificate. At the I-130 interview, you may be questioned about why you married your first spouse to see if you entered that marriage because you loved the person or for the primary purpose of obtaining an immigration benefit.

Before you file the I-130 petition on behalf of your spouse, it may be wise for you to consult with an immigration attorney to discuss the relevant immigration laws with you.

Michael Shane and Evan Shane, Immigration Attorneys