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Expert James
Expert James, Immigration Attorney
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My nanny is in the US(Nevada) with an expired visa--been expired

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My nanny is in the US(Nevada) with an expired visa--been expired for 5 plus years. She just three weeks ago-officially divorced her husband in El Salvador and now wants to marry a US citizen this weekend. I advised her to wait as I told her the interview for her Green Card will think the whole thing is not legitimate based on the time frames. Can you help with an answer?

Hi there,

Thank you for using Just Answer/Pearl. I'll do my best to answer your questions as completely and honestly as I can. Please note that I earn my living by helping customers like you, so once you've received your answer, I ask that you give me a positive rating for my customer service, so that I get credit for my work. Also please understand that the rating you give is not based on the outcome of your question, for which the law sometimes does not have a satisfactory solution. If you feel the need to use "poor service" or "bad service," please ask follow-up questions instead, so that I can try to help you further.

I'm sure I can help. What is your exact question you need answered? I presume you re asking whether you are right or wrong, but I could use some clarification, just to be sure.
Customer: replied 4 years ago.

Yes basically am I right or wrong to tell her to wait? She wants to get married but I am concerned this will severly hurt her chances for a green card in the future or possibly get deported?

Hi Jeff,

I do understand her feelings of urgency, as she wants to get married and start the legalization process as soon as possible to avoid any threat of removal at this point. And I also understand your concerns of the appearance of impropriety.

The frustrating thing is, both of you are right. Technically, there is no required wait time for her to be married, once she is divorced. But technicalities are often not the considerations, when an officer uses his or her gut feelings to make determinations on the bona fides and good faith of a marriage, as it relates to immigration benefits.

And so the longer one waits, and presumably continues to establish a stronger relationship with the new spouse, the less improper it looks, i.e the less likely it appears that the basis for undertaking the marriage was for the purpose of immigration.

However many people have successfully gone through the process doing exactly what your nanny wants to do. It is just that it was a little more difficult, and required a strong showing that the relationship was, in fact, real and authentic, and not for the purpose of gaining immigration benefits. To that end, if this relationship has been long standing, even when she was still married to her ex-husband from El Salvador, and she can prove that the relationship has been ongoing for years, it won't be such a problem that she just got divorced, and is already getting re-married. In other words, the appearance of marriage for the purposes of protecting her from immigration penalties can be explained away by virtue of the fact that, irrespective of the fact that she was married to someone in El Salvador, she had an ongoing, real, authentic, romantic relationship with the US citizen. And now that her other marriage has been dissolved, she is free to marry this person.

So while you are right that it would be better to delay the marriage so that it appears less likely that it was undertaken for the purpose of gaining immigration benefits, if she can show the relationship has been and continues to be a real, authentic relationship, she could overcome the burden she would face. If she decides to get married now, I would strongly urge her to get an immigraiton attorney to help her prepare for the immigration process.

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