What to do about a second marriage and immigration?

UPDATED: Jun 4, 2012

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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


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

Answered 10 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 10 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!

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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