Can we apply for a fiance visa if our relationships overlapped while divorcing?

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Being free to marry is an eligibility requirement for a fiance visa. However, having overlapping relationships during divorce is a red flag.

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Divorces in the US can turn long and agonizing.

That’s why it’s not uncommon for fiance visa applicants to start dating a new partner while still undergoing divorce with (or separation from) their ex-spouse. 

But, how does this affect the fiance K-1 visa process? 

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• ➤ Are you allowed to petition the I-129F while undergoing divorce? 
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• ➤ If your relationships “overlap”– will that be a red flag in your visa interview?
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• ➤ Is this a technical issue you can resolve? 
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• ➤ Or does it force the officer to question your morality? 

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Let me share with you an actual case that landed in my lap:

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Jackson had a very complicated relationship situation –the caliber of which many of us don’t share– but it still raises the question: how does an overlapping relationship ( on-going divorce or separation) affect your fiance visa process?

Will they believe you were cheating? Does it even matter?

Well, it turns out the answer isn’t simple. First of all, both of you have to be legally divorced the day you submit your I-129F petition. (8 CFR 214.2 (K)(2))

And once you’re over that threshold, the “overlapping” relationship becomes a soft relationship question — where the officers can wonder “are they really in love? Is this a scam? Why so quick?”

That’s what we’re going to discuss in this article.

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When’s the earliest you can file the I-129F after divorce?

This will come as no surprise, but you have to be legally divorced the day before you submit your I-129F petition. If you’re still separated or undergoing divorce, you will have to wait until the judge signs the decree and it’s entered into the court. 

Then the courthouse officially seals and stamps your divorce document. This applies to both the US petitioner and foriegn beneficiary.

But that’s not all, you must have the actual proof termination. Simple being told you’re divorced isn’t enough, you must submit physical documentation along with your I-129F petition packet (otherwise the USCIS may delay and issue a Request for Evidence (RFE) if it’s incomplete).

If it happens to be a foreign divorce document, you have to get it translated.

Look at I-129F form Page 3, Part 1, question 23 for the Petitioner’s Marital status. The same goes for the beneficiary’s marital status. In the I-129F instructions, it discusses previous marriages:

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It reads “…evidence of termination … may include a divorce decree, annulment, or death certificate issued by a civil authority.”

So, understand RULE # 1: The USCIS needs to see that you’re legally divorced before you submit your I-129F. You must also have documentation to prove it. This applies to both the US petitioner and beneficiary.

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When’s the right time to submit the I-129F?

So, if there’s no “waiting time” after divorce, is there a “good time” to do it?

Meaning, should we intentionally wait several weeks (months?) before filing the I-129F because we don’t want to stir up problems and cause red flags?

This can turn out to be an excruciating question because…

Plenty of couples have been waiting a long time for their divorce to finalize. So, as soon as they get the divorce decree, they want to jump at the opportunity to petition the I-129F. They don’t want to wait any longer. 

But at the same time, they don’t want to be labeled as a “quick” relationship and create unnecessary red flags. Here’s how one of my readers said it:

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“My fiance and I met when he was separated from his wife and this was back in 2017. Then, in 2018 I decided to come back to the US to spend six months with him to see if we would get along. My deadline to leave the country and go back home was July 25. On July 12 he got all the paperwork from his divorce and a week later we filed our petition.”

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Believe it or not, this is a pretty common situation. This couple was approved at the interview even though the time between divorce and filing was relatively short. 

The same doesn’t necessarily apply for others. It depends on your unique case. 

So, there’s no universal “best” time to file the I-129F following divorce. You just have to be cognizant of how your timeline is perceived. 

We’ll discuss the “fix” or solution to this problem toward the end of this article because only after we explain red flags and other variables, then you’ll understand how to make a decision for yourself.

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Is a recent divorce or overlapping relationship a red flag in our case?

If you’ve recently gotten divorced and started dating your current fiance during separation, is that necessarily a red flag? Should you worry?

Barry articulates his concern when planning ahead for his fiance’s interview:

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“However, our main concern is still the fact that we started dating before her divorce was finalized. We are afraid the consular may have different moral values that are hard to bypass…

… do you know of anything we could say or how other people handled this situation?”

Well, these circumstances are individual for each case. But a handful of key factors do influence how officers perceive your relationship. It’s not strictly based on paperwork.

The main question on their mind is: “will this current relationship lead to marriage?”. Are you serious? Why was this so ‘quick’?”

Here are circumstances that push officers’ decisions negatively (i.e increase red flags):

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• ☐ If previous marriages were short
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• ☐ If past relationships were to foreigners and other visas were involved. Could you be running some sort of immigration scam?
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• ☐ Does it look like your current partner is just “hunting” for a US visa? Could there cheating involved? Are you being duped?
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• ☐ Do other “red flags” compound your case? — quick relationship, large age gap, different backgrounds, different languages/religions, in addition to your overlapping relationship / recent divorce.

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9 FAM 502.7-3(C)(5)

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On the other hand, these decrease red flags:

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• ☐ It may help if you’ve been separated for a long time. Officers are aware that divorces take a long time. For many people who’ve waited for separation, their new relationship may not seem so quick and rash. It shows stability since you’re slow and deliberate to court a new partner.
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• ☐ Waiting a long time between divorces also indicates you’re not jumping from relationship to relationship (which they don’t care about, quite frankly, they just want to be sure you’re not repeating a decision you’ll regret).
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• ☐ If you’ve had otherwise “successful” marriages in the past. For example: your past marriages were long, deliberate, and began with good intentions… possibly if you had children or your foreigner partners didn’t all leave you after getting a green card. 
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• ☐ You don’t have a “bad record” like: 7 divorces under your belt, or multiple short marriage spanning 1-2 years (I-129F multiple filer)…nothing that shows you’re reckless with relationships or hasty to make life decisions.

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How to prove a bona fide relationship despite these red flags

Despite red flags muddying up your already-interesting case of an “overlapping relationship”, how do you prove a bona fide relationship?

Show strong proof of relationship that your current relationship is genuine despite apparent overlaps with your ex. Demonstrate you’re serious about this current relationship:

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Method # 1

❒ Keep a straight, coherent storyline. This is especially true when you’re standing in front of an officer during the K-1 visa interview questioning. The times, dates, and details must match. Clearly explain that you were separated from your ex before starting a romantic relationship with your new partner. You can even rehearse questions and answers.
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❒ Write your timeline and situation clearly in the Circumstances of in-person meeting statement. I would suggest taking a moment to explain a bit about your divorce process: why you and your ex decided to divorce, if you had kids, and if your fiance knows about all of this history. Here’s an example of how you can phrase it:
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“Please note that my fiance and I were dating during months xx to yy and it was concurrent with my divorce proceedings. My fiance was aware of my ongoing divorce while we were courting. We agreed that once our divorce(s) were finalized, we would start the I-129F petition…”
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❒ Demonstrate that you had full intentions of getting divorced from your ex before starting your current relationship. Explain it in your letters or during the interview.
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❒ Highlight the strong points of your case and bona fide evidence with examples such as: having kids together, sharing finances, etc.
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❒ Show family support to help validate that it’s not a secret relationship. Even get family members to write a Statement of Witness to submit with your I-129F packet.

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❒ If you’re willing to spend time and money to be with your fiance, it speaks volumes. Reinforce how serious you are with: plane tickets, visa stamps, call logs, pictures together, etc.
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❒ Prove you intend to get married within 90 days of arrival into the US.

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Method # 2

❒ You both are not whimsical with relationships. Your “successful” past relationships vouch for your morality. You were married for a long time, you may even have had kids, you had a home, and you are reliable. etc. In addition, your past relations weren’t quick, unstable, filled with domestic violence, or so on.

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So, there’s no reason for officers to believe you’re being rash with life decisions.

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What you have to prove to them

The point here is that no matter what your unique situation is, if you present your case appropriately, you will see recognition from the Embassy. 

Remember, the main question in their mind is: “will this relationship lead to marriage?”. And they ask this because they want to be sure you’re serious before they dedicate time and resources to interview you (yup, that’s the actual reason).

That’s why your bona fide evidence has to scream: “yes, we’re a serious couple and we’ll get married”.

Those two different methods are what I told Barry and his fiance to follow after coaching them for the fiance visa interview. Here are how things unfolded:

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Clearly, Officers briefly asked about Barry before jumping straight into the main topic: the previous marriage. Fortunately, Barry’s fiance was primed and ready. She explained things clearly and they were approved shortly thereafter.

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Have a clear, coherent narrative

So, to wrap up: the main idea is that you must be legally free to marry before you petition the I-129F. This applies to both the US petitioner and beneficiary. Because if you’re legally still married, you’re ineligible for a K-1 visa.

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And only after you pass that threshold, the “overlapping” relationship becomes a “red flag” issue — where the officer must be convinced that you’re serious about this relationship and there’s no scam or fraud involved (i.e. green card scam).

Keep in mind, they’re not the “moral” police. They don’t want to know if you are ethical people or not — they simply want to be sure you’re free to marry, you intend to get married within 90 days of arrival into the US, aside from being a genuine couple. 

Having an overlapping relationship may become a red flag — a hurdle– you have to overcome with convincing proof of relationship. 

That’s why your best course of action is to show relationship evidence at the K visa interview and your I-129F packet. With that, they’ll know you’re serious despite suspicious circumstances that may have happened.

I’ve got a detailed list of the types of proof that officers look for in your paperwork. So, if you’d like to learn how to prepare it and frontload your I-129F, sign up to my email list. I’ll send you a free 10-page guide on selecting the right documents and how to present them properly.

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