What to do about a second marriage and immigration?

I am an Indian citizen currently residing in US and am a green card holder. I’m an unmarried female living with my partner. My partner is also an Indian citizen residing in USA on H1 Visa. He was married once and is going through a divorce in India; the case is pending for the past 3 years. Is it possible for us to legally get married in US before the divorce case is settled in India? How do I make our relationship legal? Is there a way (through common law relationship or something) by which he can be a conditional greencard holder through me?

Asked on June 4, 2012 under Immigration Law, California

Answers:

Osas Iyamu-Attorney at Law / Law Offices of Osas Iyamu, LLC-Immigration Law Office

Answered 8 years ago | Contributor

 

Without a valid divorce, the both of you cannot get married in the U.S and hence cannot use the relationship as a basis for seeking an Immigration benefit.

After your divorce is final and you are legally married, whether or not you can petition for him depends on how you got your green card and for how long you've been a green card holder.

If you obtained your green card through a previous marriage, you are prohibited from filing a petition for a new spouse for 5 years unless you obtain a waiver of such restriction.

If your green card was not obtained through a previous marriage, then the restriction does not apply to you but your spouse will need to wait for a visa number to be available in order to proceed with the adjustment of status application. While waiting for his visa number to become current, your spouse must maintain his immigration status, this is where the H1b will be helpful to him.

 

 

 

Meghan Abigail / Abigail Law Firm, PLLC

Answered 8 years ago | Contributor

The marriage should be considered legally over under Indian law, which I am assuming means that the divorce needs to be finalized first in India, though I am not famiiar with Indian law. You cannot marry in the U.S., whether common-law or not, unless all prior marriages are legally dissolved, as a matter of public policy.

Has he ever been the victim of a crime in the U.S.? If so, he could possibly qualify for a U-visa regardless of his marital status.

 

Otherwise, he will need to wait until the prior marriage is over, at which point you guys can marry and, assuming he is otherwise admissible, you can petition for him.

 

Good luck!


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