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Can I Apply for a K-1 Fiance Visa if I am Still Married?

  • POSTED: January 14, 2013
  • CATEGORY:
  • POSTED BY: LawrenceGruner

I would like to do a fiance petition for my fiancee in the Philippines.  I was married before but I don’t think we ever officially divorced.  Can I still apply for the K-1 fiance visa?

One of the requirements for you to successfully file for a K-1 fiance visa is that both you and your fiancée must  be free to get married at the time your petition is filed with USCIS.

This means that you are both not married at the time the petition is filed with USCIS. You must wait  until your divorce is completely final before you file your K1 petition. You should have any annulments or divorce decrees reviewed by a Family Law Attorney prior to the filing of your case. The family law attorney can verify that your annulment or divorce is in fact valid and final. (As an aside, if you are a widow or widower or, if your fiance is a widow or widower you should have any death certificates also examined prior to submitting them to USCIS.)

Ultimately, prematurely filing a K-1 fiance visa case before your divorce is final) will have the unintended consequence of having your fiancé arrive in the United States later than expected rather than sooner. This is because USCIS will deny the case you filed prior to being officially divorced.  You will then have to file a second K1 fiance visa case with USCIS once you can show that you have successfully obtained your divorce. Hence, it is very important that you not file your K-1 fiancé visa case until both you and your fiancé are free to marry.

The area of family law can be very complex. The time required to obtain a divorce varies by country and even by state. Many individuals believe that they are divorced when, in fact, their divorce is not yet final.  Therefore, it is imperative that you make sure that you are, in fact, free to marry, before you file your K1 fiance visa case.

A remarkable California study which was conducted a few years ago determined that over 20% of the people who thought they were divorced had not even completed all the paperwork needed to finalize their divorce.  Thus, they were legally still married.

It appears that sometimes the parties had gone through the whole process but the final court order had not been entered in the case for a variety of reasons. Other times the parties, although they thought they did, in fact they may not have had the ability to obtain a divorce in a particular jurisdiction (again for various reasons).  Thus, their divorce was not valid.

Therefore, if you have been divorced, before you waste time, energy and money filing for a K-1 fiance visa which may be denied based on a technicality, please consult with a family law attorney to ensure that your divorce or annulment is in fact final

It is always advisable to consult with a family law attorney to ensure that any prior divorces or annulments are actually final. The attorney will likely need to review all divorce, annulment, or death documents in detail to make sure that you are free to marry.

Lawrence Gruner is a fiance visa attorney and a marriage green card attorney who has almost 20 years of experience handling fiance visa cases all over the world.  He would be happy to talk to you, free of charge, about your case.  He can be reached, toll free, at 888-801-6558 or 916-760-7270.  He may also be reached via email at attorneygruner@gmail.com  He will be happy to  review your options and make sure your case is successful and is processed as quickly as possible.

Immigration laws can and do change.  Please  do not rely on friends or co-workers.  Instead, always speak to an experienced and qualified immigration attorney prior to filing any paperwork with USCIS as there can be very serious consequences.

We handle cases throughout the state of California and all over the World. We wish you all the best!

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