File for K-1 visa while still not eligible to be married? or have to wait?

[firetresses]

Hello

I live in Wisconsin USA and my fiance is from and lives in South Africa. I finally was legally divorced from my ex on 5/6/10 and Wisconsin state law requires that I wait 6 months (no matter where I move or would go get married) to be legally married again.

So I'm already down 1 1/2 of those 6 months, YAY!

Due to financial reasons with my fiance and his family/living situation we need to get him over ASAP. The only thing holding us back is the K-1 fiance visa.

I need to know if I can still file for the K-1 visa before the 6 months are up? If things go as planned (fingers crossed right?) it will be approved right towards the end of the 6 months and then he'll come here probably about 45 days into the 90 days. We'll live together for a few weeks here and then when I'm eligible we'll get married.

I'm just hoping i don't need to wait until the 6 months are officially up to even file the petition for the k-1 visa.

Anyone know? i appreciate it!!

-Sarah

[MrsAllen2b]

Part of the rules about who is eligible to apply for a visa states that you have to be eligible to marry when you file it. It's possible that the person processing your application isn't going to read through your divorce decree to see that you've got a six-month waiting period, and you'd be eligible to marry by the time he got over here, so you could be safe. However, you risk them denying you based on the fact that you're not eligible to be married yet, and having to start over and pay the $455 again.

It's really up to you.

[Bernie31]

Depends on the divorce cert from state to state.
Mine clearly spelled out when I was eligible to remarry. So, yes it is written quite clearly and very unambigously. It will be read and noted.

[nichole]

You must be free to marry, so don't apply until you are.

[firetresses]

Part of the rules about who is eligible to apply for a visa states that you have to be eligible to marry when you file it. It's possible that the person processing your application isn't going to read through your divorce decree to see that you've got a six-month waiting period, and you'd be eligible to marry by the time he got over here, so you could be safe. However, you risk them denying you based on the fact that you're not eligible to be married yet, and having to start over and pay the $455 again.

It's really up to you.

Thanks for your reply. I was wondering if you could explain where exactly the "rules" are because I want to find out as much info as I can before I call somewhere (and get thrown around in the "fun" government phone circles).

I re-read over the i-129f instructions again and also the i-129f application and the final verbage says this:

"YOUR CERTIFICATION: I am legally able to and intend to marry my alien fiancé(e) within 90 days of his or her arrival in the United States. I certify, under penalty of perjury under the laws of the United States of America, that the foregoing is true and correct. Furthermore, I authorize the release of any information from my records that U.S. Citizenship and Immigration Services needs to determine eligibility for the benefit that I am seeking."

The other verbage on the application instructions is the same. I took it as I would be able to file now because the visa when approved would be valid for 4 months and then he has 90 days from the time he arrives within the US for us to marry on the Visa. So given the time frame I'm eligible to marry on 11/6/10 and we were planning on him coming here very end of September or early October to get him settled, SS# so he can work and find work before we get married. The dates obviously aren't set in stone, it's all depending on approval time, but i was asking the question because i know that sometimes the verbage says something but i don't always read it the correct way intended.

[MrsAllen2b]

I was wondering if you could explain where exactly the "rules" are because I want to find out as much info as I can before I call somewhere (and get thrown around in the "fun" government phone circles).

When you go to the USCIS website, and enter that you are a USC and want to bring your fiance to the US, this is the page it brings up. When you look under eligibility requirements it says:

You and your fiancé(e) are both free to marry and any previous marriages must have been legally terminated by divorce, death, or annulment.

By attempting to circumvent the divorce laws in your state, you could also cost yourself a lot of time and money by applying too soon and being denied. The $455 application fee will NOT be refunded to you for applying when you aren't eligible. This will also cost you time, as you don't know how long they'll take to process your application just to tell you you're not eligible.

Do yourself a favor and wait.

[nichole]

I took it as I would be able to file now because the visa when approved would be valid for 4 months and then he has 90 days from the time he arrives within the US for us to marry on the Visa. So given the time frame I'm eligible to marry on 11/6/10 and we were planning on him coming here very end of September or early October to get him settled, SS# so he can work and find work before we get married. The dates obviously aren't set in stone, it's all depending on approval time, but i was asking the question because i know that sometimes the verbage says something but i don't always read it the correct way intended.

Hi, I just wanted to clear up something off topic from your questions about your divorce timing. Concerning your statement above.

You are not applying for a visa. You are filing a petition for a fiance, basically to determine if you are eligible to bring a fiance to the US (free to marry, met in person, etc). Once approved, the petition approval is dated as valid for 4 months.

The case will go to the National Visa Center and then to the US embassy in your fiance's country.

Your fiance will apply to the embassy for the visa. It is valid for 6 months, meaning he has six month to use it to enter the US.

When your fiance enters the US, he will be issued an I-94 card giving him 90 days in the US, during which time he is to marry you. He can't work during this time. If he marries you, then he can remain past his 90 days.

Your fiance (now husband) will apply for Adjustment of Status in order to get a green card that allows him to remain as a permanent resident of the US. It is valid for 2 years. At the same time he can apply for employment authorization. He can't work until he receives that EAD card or the green card in hand.

Right before that green card expires, he will file for Removal of Conditions to get a 10 year GC.

Each step requires forms, documents of proof, and application fees.