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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 105701
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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Guillermo. I am not officially divorced from my husband

Customer Question

Hi, Guillermo. I am not officially divorced from my husband (though we have not lived together for 3 years and he has a partner and another child--still waiting on the final settlement to be approved). My boyfriend is English and considering moving to New York to live with me. But do I need to have my divorce finalized in order to help him apply for a visa to live here permanently (e.g., a fiance visa where we would marry within 90 days). I'm not sure when the final divorce settlement will occur. Could be a month, could be six!
Any advice?
Best,
Rebeca
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Welcome to JustAnswer! Thank you for requesting me. I am a licensed attorney and I am here to help resolve your legal issue. Tackling legal issues can sometimes get cumbersome or confusing. Should you need to chat on the phone, private email or need help reviewing documentation, I am happy to do so for a small additional cost. Let me know at any time during our question and answer session if you are interested in these – I am happy to give you more details! You are NOT charged per question and you are NOT charged per response, so post at your desire! Just please remember that sometimes the law does not have an easy or convenient solution and that is not the fault of the expert. Please do not shoot the messenger.
Unfortunately, in order to file anything for him, your divorce has to be final at the time that you file. If you filed before your divorce was final, the case would be denied even if your divorce was final during the process. So you are going to have to wait. Of course, if he enters on a B-2 tourist visa or ESTA Visa Waiver and later marries, you, that will work for him to be able to stay when you file an adjustment package for him But he has to be careful because he is NOT supposed to use a B-2 or ESTA to enter if his intent is to stay. If they discover his intent, one of three things could happen:
a) They will allow him to withdraw his request to enter the U.S. and he can go home, no penalty.
b) They will not allow him to withdraw his request to enter the U.S. and will order him excluded. This has a 5 year penalty that he cannot come back unless he gets a very hard to get waiver.
c) They will not allow him to withdraw his request to enter the U.S. and they catch him in a lie and they exclude him with a permanent bar due to fraud and/or misrepresentation and with that charge he cannot come back unless he gets a very hard to get waiver.
If you want to do it the "right" way, then there are essentially three ways to bring him and none are really fast, unfortunately:
1) The K-1 fiance visa takes 6 to 9 months, but you must have met before at least once during the last two years in order to process it. The I-129F will cost $340 plus a $350 fee for the visa processing fee. After he enters the U.S., then you have to marry and then you have to pay $1070 for the I-485 and he will have to wait about 5 to 7 months and gets another interview that you attend with your new spouse so that he can get Residency.
2) The K-3 spouse visa takes 6 to 9 months, you must be married. The I-129F will cost $340 plus $420 for the I-130, and $350 for the visa processing fee. Then after he enters the U.S., he must still file the I-485 for $1070 and wait for the marriage interview about 5 to 7 months later.
3) The CR-1 visa (or IR-1 if your marriage is more than 2 years old) takes about 1 year or so. You must be married. The fees are $420 for the I-130, $330 for the visa processing fee, $88 for an Affidavit of Support fee. But once he enters the U.S., he enters as a Resident and he does not have to file (or pay for) an I-485 nor does he have to attend an additional interview. He just gets his green card in the mail a few weeks later.
So the K-1 and K-3 are faster but generally more expensive. The CR-1 (and IR-1) are slower, but generally cheaper. And no, there is no middle-visa that he can use to enter the U.S. while that process is pending. He will most likely have to wait outside.
Here is a link to all three:
http://travel.state.gov/content/visas/english/immigrate/types/family/fiance.html
and another link:
http://www.uscis.gov/sites/default/files/USCIS/Resources/Resources%20for%20Congress/Congressional%20Reports/I-129F%20Petition%20for%20Alien%20Fiance%28e%29.pdf
I know you do not want to wait. I know it is very inconvenient. I know you want to be together sooner rather than later, but I have this same conversation two or three times per day on this website. No one ever likes it and believe me, if there was an easier or faster way, I would tell you. I know you will probably say, “but what about this...?” or “but what about that...?” But I will most likely continue to have bad news for you. I am truly sorry. The problem is that the U.S. concerns over security and fraud in this area are more important than a 6 to 9 months inconvenience to you. The way they see it is that if it truly is a real relationship, it will survive that length of time apart. Again, I am truly sorry. I wish I had a faster and easier way to tell you about.
Now that I have given you an answer, you may rate me positively OR ask for additional information. Please do not rate me negatively for bad news or things that you may already know. That does not help you or me. I am here to help you and I am on your side. Give me a chance to help you. All you have to do is respond asking for additional information. You are NOT charged per question nor are you charged per response. If this seems a little complicated or overwhelming, I can also offer you an additional service for a small fee where we can speak in private over the phone or through email that may be helpful (this is a public forum where anyone can read the responses). Feel free to decline it, but if you do, please remember that I am not given a salary, so the only way that I am compensated is if you rate me positively. So at least please use the smiley faces and a bonus is always appreciated if you feel I earned it. Also, your question does NOT close just because it says, "To finish". I can still answer additional questions for you without additional charge. If I do not hear from you, I will automatically send that additional offer request. Thank you for your understanding and if you would like to request me in the future, just type: FOR GUILLERMO in the subject line and message box.
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Hello. I'm just following up with you to see how everything is going. Did my answer help? Please let me know. Thank you!