Braselton, GA Immigration Law Firms & Lawyers

Although not clear from your question, I presume that your fiance is a U.S. citizen. If that is correct, and your fiance's divorce now is final, you may become married. Then you and your U.S. citizen husband should be able to proceed with a marriage-based Adjustment of Status application process in the Immediate Relative visa category notwithstanding that your initial nonimmigrant visa has expired. Immediately upon filing an adjustment of status application the foreign national becomes authorized to remain in the U.S. until that application is finally adjudicated (with that application and an application for an Employment Authorization Document [an "EAD" or "work permit"], the USCIS will issue an EAD within 90 days authorizing employment while the application remains pending. A former spouse's communication to immigration authorities about a foreign national having been out of status before filing a marriage-based application would be inconsequential Of course, there are additional details that govern adjustment of status eligibility.

It appears you misunderstand the requirements for eligibility for naturalization. Among the requirements are ones relating to (1) residence and (2) physical presence. Generally, a Permanent Resident must reside in the U.S. for five years before becoming eligible to apply for naturalization (actually, one may apply as early as 90 days before the end of the 5-year period), and one must be physically present in the U.S. more days than be physically outside the U.S. during that five-year period. If a Permanent Resident is outside the U.S. for a continuous period of 180 days or longer, there can become a presumption that he/she abandoned residence in the U.S., but that presumption can be rebutted with evidence that residence in the U.S. was maintained notwithstanding the long absence (a continuous absence of 1 year or longer no longer creates a rebuttable presumption, but instead can cause a legal determination of abandonment of residence). Since you were permitted to re-enter the U.S. after your single trip of six months and 12 days, it appears you were able to rebut the presumption that you had abandoned your residence in the U.S., and so it appears you now may proceed with a naturalization application process. Nonetheless, there really is no substitute for you to consult with an immigration attorney who, after learning all of the relevant information, could advise about eligibilities, options, and strategies to attain your goals, and who then could offer legal representation in the often complex application process.

Although not clear from your question, I presume that your fianc?e and her son are located abroad. If that is accurate, you may apply for a fianc?e visa that would authorize her to come to the U.S. in order to marry you within the required time, and then you could sponsor her in a marriage-based adjustment of status application process. Alternatively, you could marry her in the Philippines and then proceed with Consular Processing. There are pros and cons to these approaches, and if your fianc?e and/or her son already may be in the U.S., other options should be explored too, each with its own pros and cons and legal requirements. It would be wise for you and your fianc?e to consult with an immigration attorney who, after learning all of the relevant details, would be able to advise you about immigration eligibilities, options and strategies and offer legal representation for the application process.