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I am an F-2 visa holder in the US. I came to the US with my spouse as his legal wife. In the US I fell in love with another US citizen guy and we want to marry together. But I don't know is it necessary to get divorce from my previous spouse even when we are not US citizens or Green Card holders and our marriage happened in our country, not in the US?

I also like to know should I leave the US after getting divorce and apply for a new marriage visa from outside of the US or I can do it inside the US immediately after getting divorce with no need to leave the country?

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user3486308
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    Related question from same person on Law.SE. – Michael Seifert Dec 09 '21 at 12:49
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    Once you divorce, your visa is invalid, and you are supposed to leave the country. You could remarry and file for a new visa, but be aware you will be heavily scrutinized as this fits the pattern of marriage fraud. If your husband is abusive, you can gain legal status through VAWA. Otherwise you run the risk of being deported to your home nation where you are still married to your first husband. – rtaft Dec 09 '21 at 18:12
  • @DJClayworth: My husband has F-1 visa and I am F-2 as his dependent in the US. – user3486308 Dec 09 '21 at 18:53
  • @rtaft: If I know someone else to marry with at the moment, should I leave the US after I get divorce within the US and apply for a marriage visa from outside of the US? – user3486308 Dec 09 '21 at 19:00
  • @user3486308 How long have you been in the US? – rtaft Dec 09 '21 at 19:15
  • @rtaft I think that is important enough to be an answer. – DJClayworth Dec 09 '21 at 19:16
  • @rtaft: about 6 months. – user3486308 Dec 09 '21 at 19:29
  • @rtaft: Is there any law about duration I live inside the US to stay or leave the country after divorce? – user3486308 Dec 09 '21 at 20:08
  • Consider if you can claim asylum. This will get ugly fast. – Joshua Dec 09 '21 at 20:24
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    Note that marrying an American citizen doesn't immediately grant you the right to enter or stay in the USA. You will have to apply for a Green Card. It takes a long time to complete that process, and sometimes it takes even longer. – Cris Luengo Dec 09 '21 at 20:29
  • @CrisLuengo: It means even if I immediately get marry inside the US after my divorce, I must leave the US and wait for new visa to come back? – user3486308 Dec 09 '21 at 20:32
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    I don't know, there might be some provision or other that lets you stay while you apply? I married a US citizen outside the US, and it took me 9 months to get a green card. And I'm an easy case, we even had a child together. Also, some F-1 visas have a provision that requires the barer to return to their country of origin and live outside the US for some years before they can apply for another visa. Honestly, you should consult an immigration lawyer, this is a complex topic. – Cris Luengo Dec 09 '21 at 21:03
  • @user3486308: "It means even if I immediately get marry inside the US after my divorce, I must leave the US and wait for new visa to come back?" In the Immediate Relative category (spouse, parent, or unmarried under-21 child of US citizen), you are eligible for Adjustment of Status (i.e. get a green card from within the US) even if you are out of status at the time of filing, and it doesn't matter how long you have been out of status. So if you overstay in the US after the divorce and then marry a US citizen and apply for Adjustment of Status, you can get a green card without leaving the US. – user102008 Dec 11 '21 at 21:13

4 Answers4

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Yes, your foreign marriage is valid in the US, as evidenced by your having been granted an F-2 visa, and it must be dissolved before you can marry someone else.

phoog
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    How can I prove we got divorced? Should I get a governmental paper from our country? Or I can make a claim in the US that I don't want continue my previous marriage? – user3486308 Dec 08 '21 at 20:37
  • Also in Muslim countries women can not get divorced until they husband wants. How can they get rid of it? – user3486308 Dec 08 '21 at 20:38
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    @user3486308 you may be able to divorce in the state where you reside, though you should pay attention to whether such a divorce would be recognized in your home country. You might want to ask at [Law.SE]; international family law can be complex. – phoog Dec 08 '21 at 20:56
  • @phoog: Home country Muslim; on remarriage in the US it won't matter what the host country thinks unless she returns for some reason. – Joshua Dec 09 '21 at 20:17
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    @Joshua which is a possibility that we should not discount, don't you think? Of the dozens of people I've met who live outside their country of citizenship, probably well over 100, I can only think of three who had accepted that they might never return, and two of those people were sisters. – phoog Dec 09 '21 at 20:47
  • @phoog If the divorce is not recognized in the home country, I think that would be no problem in the USA. In Germany it would be a problem, because a marriage must be legal according to German and both spouses' law. Which IS a problem. But you can go to Las Vegas and get married there (don't actually know for sure, but it might work). – gnasher729 Dec 13 '21 at 19:44
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As other answers have indicated, you must divorce before getting remarried, otherwise your new marriage is invalid. But I think they have oversimplified it and this could very easily turn bad for you.

Since you are on an F-2 visa, your presence in the US is dependent on your marriage to your husband...and dependent on his F-1 visa. An F-2 visa is not an immigrant visa, once it is invalidated, you are no longer allowed to stay in the US. You could technically be deported at any time. You are not allowed to work, how will you support yourself?

If you were to divorce and remarry, there are 4 options.

  1. Marry immediately and file to adjust your status without leaving the country.
  2. Marry immediately, return home, and file for a spousal visa.
  3. Return home and file for a fiance visa, then get married after approval.
  4. You could apply for asylum

I'll be honest, each of these options is going to be difficult. The first 3 of these require that your new spouse can prove that they can support you financially. They will trigger extra scrutiny on your new application because you came on an F-2, and within less than 6 months, started having a relationship with another man. It also sounds like you may be from a MENA country, which will make it even more difficult, as will a big age difference with the new spouse if there is one. If you make it to the interview, they are going to ask a lot of questions, and you are going to have to convince them you did not plan this out to get into the country. Each carries risks and it's going to look like immigration fraud. Worst case scenario you will get stuck in your home country married to 2 men because your home country doesn't recognize divorce and you married another man. What are the consequences for that in your home country?

I don't think the Violence Against Women Act will help you because your husband is not a permanent resident or citizen, but I could be wrong. If you were eligible, you would need to prove your spouse is abusive.

There is something else you may be overlooking, is your current spouse aware of your plans? You will need them to cooperate to even have a chance (unless you take the asylum route). If they refuse to cooperate and simply return back to your home country and abandons their visa, then what? Divorces take time (especially if they are uncooperative). If they withdraw from school and return home, your presence becomes illegal and you are supposed to return home. Without him here, it could easily take well over 6 months to finalize a divorce. You cannot guarantee you will be able to stay in the US after this is done either. This process will be very difficult and would likely need a lawyer that specializes in immigration.

rtaft
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  • What if I get divorce after 6 months of living inside the US? Also, if my current spouse agrees with our divorce and help me doing that? – user3486308 Dec 09 '21 at 22:04
  • I also like to know how much money as support is needed to be shown by new spose? – user3486308 Dec 09 '21 at 22:07
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    If he agrees, it gets you time to do everything properly. You want to minimize your unlawful presence, which makes it harder to show the relationship is genuine since you will have to divorce and immediately remarry. As far as support, I believe the minimum income is 125% of the federal poverty level, which is about $22k for 2 people. – rtaft Dec 09 '21 at 22:23
  • Thank you for all your answers. Is 22K for a year? Can I also help him to show that money using my personal savings? Or even introduce myself as a self-funded person? – user3486308 Dec 09 '21 at 22:41
  • I must also say my previous marriage happened 15 months ago in our country and we are here in the US for about 6 months. I don't know if is it a good or bad news? – user3486308 Dec 09 '21 at 22:44
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    You can try. I can't guarantee what will happen, you are asking me what your interviewer will think, and the result could be different depending on who that person is. Every asset helps. 22K per year income. – rtaft Dec 09 '21 at 23:00
  • OK thank you so much. I just wanted to know the law and it seems it's also depends on officers opinion as well. – user3486308 Dec 09 '21 at 23:34
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    "If you do stay more than 6 months past that date and then leave the country, you will automatically be banned from entry for 3 years." You're thinking of the unlawful presence ban, where if you accrue 180 days of unlawful presence and then leave the US, you trigger a 3-year ban. However, going out of status does not by itself cause unlawful presence to start accruing. The only ways for unlawful presence to start accruing are: 1) stay past the date on the I-94, 2) apply to USCIS for a benefit and be denied, or 3) a final order in removal proceeding in immigration court. – user102008 Dec 10 '21 at 05:07
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    In the case of the OP, since they were in F status, they were almost certainly admitted with D/S on their I-94, not a date, so they do not automatically start accruing unlawful presence at any time. They can only start accruing unlawful presence in the last 2 of the 3 conditions I mentioned (apply for a benefit and be denied, or final order in immigration court). If they do not apply for some benefit and are not put into removal proceedings, they do not accrue unlawful presence no matter how long they stay. – user102008 Dec 10 '21 at 05:08
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    @user102008 noted, removing that part – rtaft Dec 10 '21 at 14:42
  • Summary: This requires careful planning and a lawyer. But it should be possible to stay long enough legally to get married. – gnasher729 Dec 13 '21 at 19:47
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It is necessary if you don't want to go to jail for bigamy.

A marriage in practically any country will be valid in the USA (possibly with exceptions for a forced marriage, or if the marriage would have been badly illegal in the USA). Just as most countries will accept you as married if you got married in the USA.

You will have to get a divorce. In the USA the divorce must be accepted by the USA, not necessarily by your home country or the country where the wedding took place. So a muslim woman would be able to get a divorce in the USA against the will of her husband, but you should get a lawyer if that is your situation. And you might get into trouble if you visit your home country.

gnasher729
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  • As pointed out in a comment on Law.SE you might also get into trouble if you remain in the USA, because F-2 status ends the moment a divorce is finalized so you will need another basis on which to lawfully remain in the country. – Will Dec 09 '21 at 15:29
  • Thank you for your answer. If I know the person I want to marry with him, still I must leave the country? There is no way we marry as soon as the divorce accepted(or even before that) to avoid leaving the US and apply for a new visa again? – user3486308 Dec 09 '21 at 19:05
  • @user3486308 you can't marry before your divorce is finalized. You would need to marry immediately after the divorce is finalized and then begin the process for the green card as soon as possible after that. It's probably not a good idea to try to do this without consulting an immigration lawyer. – phoog Dec 10 '21 at 16:34
  • @Will How much time to get married again :-( – gnasher729 Dec 13 '21 at 14:33
  • @user3486308 Read the comments to rtaft's answer. It looks to me like you can stay legally for some time after divorce, and that should be enough time to get married. – gnasher729 Dec 13 '21 at 19:49
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I know someone who went through something similar more than 30 years ago. Lots of scrutiny of the marriage, but the green card was eventually granted. They did not leave the country for any reason until naturalized. (And, no, it wasn't fraud--they're still married to the same person.) There were only a few days between the divorce being granted and the new marriage.

Loren Pechtel
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