Special case, please read carefully

[melsorady]

I would go for the student visa first, as that will be processed fastest (if approved) and get your wife to the U.S. Once in the U.S., you can proceed with submitting an I-130 (without submitting the I-485) so that you can deal with any "divorce-marriage" date issues before investing the full $1,070 for the I-485 Adjustment procedure.

--Ray B

Ray,


I know it might be difficult to answer, but just wanna get your overall impression/gut feeling; What are the odds that USCIS, at the US Embassy in Morocco, would ask my wife when interviewing for M1 visa, about dates controversy. I mean she has to show a proof of our relationship, which is the Moroccan marriage certificate. But I am not sure if they will ask her to show a copy of my green card, and from there they can see my GC category IR6. Which means immediate relative to citizen. Will they take it so far and start asking her about my previous marriage, how it ended, and further ask for divorce decree, the one I have from IL, and start talking about the marriage/divorce dates issue? Or because it is application for student visa and school is the visa sponsor, they won't go that far.

[rayb]

Melrorady,

I think you're stretching this too far. When her M1 visa application is reviewed, including her marital status, there is no reason for the Embassy to research your prior marriage, current resident status, etc., since you aren't part of her M1 application. The only issue is that she claims to be married, which will be considered as a possible future "intent to immgrate" issue.

-Ray B

Ray,


I know it might be difficult to answer, but just wanna get your overall impression/gut feeling; What are the odds that USCIS, at the US Embassy in Morocco, would ask my wife when interviewing for M1 visa, about dates controversy. I mean she has to show a proof of our relationship, which is the Moroccan marriage certificate. But I am not sure if they will ask her to show a copy of my green card, and from there they can see my GC category IR6. Which means immediate relative to citizen. Will they take it so far and start asking her about my previous marriage, how it ended, and further ask for divorce decree, the one I have from IL, and start talking about the marriage/divorce dates issue? Or because it is application for student visa and school is the visa sponsor, they won't go that far.

[melsorady]

Melrorady,

I think you're stretching this too far. When her M1 visa application is reviewed, including her marital status, there is no reason for the Embassy to research your prior marriage, current resident status, etc., since you aren't part of her M1 application. The only issue is that she claims to be married, which will be considered as a possible future "intent to immgrate" issue.

-Ray B

Ray,

I know that I may be taking this too far...but I am just thinking about all possible replies she might be facing at an interview so we can be prepared.

[melsorady]

Ray,

I know that I may be taking this too far...but I am just thinking about all possible replies she might be facing at an interview so we can be prepared.

Ray,

While reading I-130 form, I found this note on Page 2, Section C, Subsection 22: ''Designation of US embassy or consulate outside the country of your relative's last residence does not guarantee acceptance for processing by that post. Acceptance is at the desecration of the designated embassy or consulate.''

Does it mean that if I filed I-130 with USCIS office in IL, and let's say was accepted, even with that, it doesn't mean the I-130 will be accepted at the US consulate in Morocco?

Well, the way I am thinking is : it says ''designation of US embassy or consulate...'' does that mean USCIS office in the US, or actual US embassy or consulate overseas (where my wife lives)??

[melsorady]

Ray,

I know that I may be taking this too far...but I am just thinking about all possible replies she might be facing at an interview so we can be prepared.

Ray,

You mentioned: ''since you are not part of her M1 application'' In fact on the I-20 it was mentioned in the remarks that: Husband is US permanent resident is financial sponsor''. Would that make them stretch it too far and inquire about how I got my green card. I know they will ask her for proof of evidence (relationship to me) which is marriage certificate in Morocco.

[rayb]

The caveat in your citation usually applies to foreign nationals applying for a visa in a country other than their own "country of origin." Examples might be Filipinos working in Italy (legally) and applying for a K1 visa at one of the U.S. consulates in Italy. I've been involved in several such "non-home-country consulates" being used for processing of such visas, and none were denied because of the "discretionary" clause (Afghan national in Switzerland Filipino in Italy Filipino in Dubai, etc.).

--Ray B

Ray,

While reading I-130 form, I found this note on Page 2, Section C, Subsection 22: ''Designation of US embassy or consulate outside the country of your relative's last residence does not guarantee acceptance for processing by that post. Acceptance is at the desecration of the designated embassy or consulate.''

Does it mean that if I filed I-130 with USCIS office in IL, and let's say was accepted, even with that, it doesn't mean the I-130 will be accepted at the US consulate in Morocco?

Well, the way I am thinking is : it says ''designation of US embassy or consulate...'' does that mean USCIS office in the US, or actual US embassy or consulate overseas (where my wife lives)??

[melsorady]

The caveat in your citation usually applies to foreign nationals applying for a visa in a country other than their own "country of origin." Examples might be Filipinos working in Italy (legally) and applying for a K1 visa at one of the U.S. consulates in Italy. I've been involved in several such "non-home-country consulates" being used for processing of such visas, and none were denied because of the "discretionary" clause (Afghan national in Switzerland Filipino in Italy Filipino in Dubai, etc.).

--Ray B

Thank you, Ray....

You mentioned before in one of your replies: ''since you are not part of her M1 student visa application, the consulate office has no reason to ask about my previous marriage or residency status...'' In fact on the I-20 form it was mentioned in the remarks that: Husband is US permanent resident is financial sponsor''. Would that make them stretch it too far and inquire about how I got my green card. I know they will ask her for proof of evidence (relationship to me) which is marriage certificate in Morocco, but I am not sure how they will take it from there!

[rayb]

My "opinion" is that there is no reason for any of the reviewers along her entry path to question the origin of your Green Card. That would come up, however, whenever your wife begins any adjudication resulting from your petitioning her.

--Ray B

Thank you, Ray....

You mentioned before in one of your replies: ''since you are not part of her M1 student visa application, the consulate office has no reason to ask about my previous marriage or residency status...'' In fact on the I-20 form it was mentioned in the remarks that: Husband is US permanent resident is financial sponsor''. Would that make them stretch it too far and inquire about how I got my green card. I know they will ask her for proof of evidence (relationship to me) which is marriage certificate in Morocco, but I am not sure how they will take it from there!

[melsorady]

My "opinion" is that there is no reason for any of the reviewers along her entry path to question the origin of your Green Card. That would come up, however, whenever your wife begins any adjudication resulting from your petitioning her.

--Ray B

Ray,

Because I already signed the affidavit of support with the school, along with a contract/financial agreement explaining the payment plan, plus I made the first payment as well, and proofs of all that will be presented to the consular officer anyways. That said, do you think, if it is possible, that the designated school official do not put this statement in I-20 (i.e. stating who's the financial sponsor), won't draw the officer's attention to question my residency or previous marriage?

[rayb]

Melsorady,

We're dealing with hypothetical "what if..." possibilities. I think the greater risk is that the reviewer will see that the applicant has a husband in the U.S., suggesting "intent to immigrate" by her school application.

--Ray B

Ray,

Because I already signed the affidavit of support with the school, along with a contract/financial agreement explaining the payment plan, plus I made the first payment as well, and proofs of all that will be presented to the consular officer anyways. That said, do you think, if it is possible, that the designated school official do not put this statement in I-20 (i.e. stating who's the financial sponsor), won't draw the officer's attention to question my residency or previous marriage?

[melsorady]

Melsorady,

We're dealing with hypothetical "what if..." possibilities. I think the greater risk is that the reviewer will see that the applicant has a husband in the U.S., suggesting "intent to immigrate" by her school application.

--Ray B

Ray,

I see your point...She has a job in Morocco and affidavit of support from morocco too. I am not saying her application is perfect, but I am looking form a broader scope and trying to do my best.

[melsorady]

Ray,

I read on the instruction for filling I-130 that persons who may NOT file I-130 include, but not limited to : a person who gained LPR by virtue of a prior marriage to US citizen or LPR, unless:
1. A period of 5 years had elapsed since you become a LPR; or
2. You establish by clear convincing evidence that the prior marriage through which you gained immigrant status was not entered into for the purpose of evading any provisions of immigration laws; or
3. Prior marriage was terminated by the death of former spouse.

Now my LPR started on 6/25/2009, based on what is above, does it mean I have to wait till 6/2014 in order to file I-130 for my wife in morocco?

I noticed there is an "Or" at the end of each exclusion case, which means if one of them has met I can file, which is no 2 as I can establish by clear evidence that my marriage wasn't entered into just to violate immigration laws.

Can you please elaborate on this point?

[rayb]

Melsorady,

I think I mentioned this to you in an earlier post. You can't submit the I-130 until five years has passed from start of your Green Card status as the result of a petition by another spouse. Disregard #2 ("clear convincing evidence..."). Reviewers will use #1 ("5-year period") to determine if you meet the criteria.

--Ray B

Ray,

I read on the instruction for filling I-130 that persons who may NOT file I-130 include, but not limited to : a person who gained LPR by virtue of a prior marriage to US citizen or LPR, unless:
1. A period of 5 years had elapsed since you become a LPR; or
2. You establish by clear convincing evidence that the prior marriage through which you gained immigrant status was not entered into for the purpose of evading any provisions of immigration laws; or
3. Prior marriage was terminated by the death of former spouse.

Now my LPR started on 6/25/2009, based on what is above, does it mean I have to wait till 6/2014 in order to file I-130 for my wife in morocco?

I noticed there is an "Or" at the end of each exclusion case, which means if one of them has met I can file, which is no 2 as I can establish by clear evidence that my marriage wasn't entered into just to violate immigration laws.

Can you please elaborate on this point?

[melsorady]

Melsorady,

I think I mentioned this to you in an earlier post. You can't submit the I-130 until five years has passed from start of your Green Card status as the result of a petition by another spouse. Disregard #2 ("clear convincing evidence..."). Reviewers will use #1 ("5-year period") to determine if you meet the criteria.

--Ray B

Ray,

I guess my question is: does it have to be 5 years exactly since I became a LPR to file I-130 for spouse in morocco? I mean it's been 4 years and 6 months since I got my LPR. And since we are planning for student visa at the moment I think we won't start filing I-130 in 4/2014, that time it will be 4 years and 9 months. That still doesn't count without the remaining 3 months to be 5 years exactly??

[rayb]

Melsorady,

I can't say if USCIS will allow a 3-month flexibility in meeting the 5-year requirement. For Naturalization and "Removal of Conditions" petitions, applicants can submit 3 months or less before meeting the eligibility anniversary requirements (3 or 5 years for Naturalization; 2 years for Removal of Conditions).

My advice is to follow the criteria for an I-130 literally: "...You may not file for a person in the following categories:...unless...A period of five years has elapsed since you became a lawful permanent resident..."

Keep in mind that that are other examples of how USCIS does not allow any deviation from a stated timeframe rule. For example, if one's fiancee petition is submitted one week before a divorce from a previous spouse has been finalized, the petition may be denied by USCIS, or a visa later denied by the Consulate a year later because the divorce now final was not final when the petitin was submitted.

-Ray B

Ray,

I guess my question is: does it have to be 5 years exactly since I became a LPR to file I-130 for spouse in morocco? I mean it's been 4 years and 6 months since I got my LPR. And since we are planning for student visa at the moment I think we won't start filing I-130 in 4/2014, that time it will be 4 years and 9 months. That still doesn't count without the remaining 3 months to be 5 years exactly??