Can we marry during his visit here and file an I-130 after the marriage? 8 Answers as of December 06, 2011

It has to be strategized properly because under the laws, one is not supposed to come to the US as a visitor if one has immigrant intent. It is possible to do it so that you comply with the laws and do what you intend to do, but it is best to first discuss it with an immigration attorney to understand the issues involved.

While a marriage visa petition filed while a tourist visa is being used by traveling in the USA is evidence of fraud, it usually has been waived once the marriage petition has been filed, and the intention not to marry at the time of entering the country on the tourist visa can be shown, and most of all, it is shown that the marriage was entered for love and not for an immigrant visa. Indeed, it can even expire while the petition is pending.

As long as you get married during the 90 day period of the VWP and file the permanent residency paperwork before his status expires he can remain.

Yes, you can process in the US, if he comes with the intent of a tourist. If you enter with preconceived intent to file for your green card, you may be refused entry or ultimately denied based on your fraudulent entry. Therefore, you must handle your process carefully and within the bounds of discretion.

You cannot file anything for him while you are still married to your current husband. It does not matter if you are separated or not. I have a hard time understanding why you still have no divorce decree from the judge after 2 years of litigation. In California, you can ask the judge to issue you a divorce decree even if the financial and custody issues are still pending with the Court. I am pretty sure that those can be severed from the case and free you to marry. Ask your attorney about this. Good luck!

Your fianc cannot travel to the United States with a non-immigrant visa or through the visa waiver program with the intent to marry. This would be a violation of the terms of his visa and cause irreparable harm to any petition for immigration benefits. It is his best interest for you to either due one of the following: (1) petition for him to receive a fianc visa once your divorce is finalized or (2) marry and have him return to the United Kingdom while the immigrant visa petition is pending. The fianc visa allows him to enter the United States to marry you. Once the marriage is completed, he seeks permanent residence. The downside is that you must marry within 90 days of his entry and if for some reason you do not marry, he must return to the United Kingdom. It is best for both of you to make sure you do things right to avoid any issues or future problems with your fianc securing documents.

You should file the I-130 and I-485 concurrently. That way he can stay during the process. The good news is that it is only taking 3 to 4 months to get a green card through a marriage to a US citizen. You must, however, finalize the divorce before getting married. And I would recommend waiting to marry until he has been in the US for about 60 days since his last arrival. That way it will not look like he came here to stay : ).

First of all, you have to be legally divorced before you can marry your current fiance, otherwise you're committing bigamy. Second, once he's inside the country, he does not have to leave while his I-130 is pending. HOWEVER, if he comes in with a non-immigrant visa, I.e. a tourist visa, the presumption of fraud automatically arises if he applies to adjust his status after he arrives, it will make his case a lot harder. I suggest you finalize your divorce first, apply for a K fiance visa for him, then once he's here on the K visa, get married within 90 days, then apply for the adjustment.