Divorce is Not A Major Obstacle to Getting the Green Card06 July 2012
Belinda met Thomas, a U.S. citizen, while she was a foreign student at a prestigious university in California. When Belinda graduated, she returned to Manila to work for their family business. Thereafter, Thomas filed a petition for fiancé visa on behalf of Belinda so they can be together again. In less than a year, Belinda obtained her fiancé visa from the consular office of the U.S. Embassy in Manila. She flew to Los Angeles, California and they got married in a civil ceremony.
Belinda filed an application for adjustment of status with the U.S. Citizenship and Immigration services to obtain her immigrant visa. A few weeks after the filing of her adjustment of status, Belinda and Thomas separated. Belinda discovered that Thomas was seeing another woman while they were married. A petition for divorce was filed and the court issued a final decree of adoption. Her application for adjustment of status was denied and she was put in removal/deportation proceedings.
While her deportation proceedings were pending, Belinda married John, also a U.S. citizen. The latter filed a petition for Belinda and this petition was approved. Despite the approval of the petition, the immigration court nevertheless ordered her deported on the ground that a person who entered on a fiancé visa may only obtain an immigrant visa through the fiancé visa petitioner. Belinda, having entered as a fiancé may only get her green card through Thomas. Belinda filed an appeal on the decision of the immigration judge with the Board of Immigration Appeals. The appeal is still pending and in the meantime, Belinda remains married to John and they now have two U.S. citizen children. Will the decision of the immigration court be reversed or will Belinda be ordered deported?
Marriage to the Petitioner is Critical
The immigration regulations pertaining to fiancé visa holders are clear. The fiancé visa holder can only obtain immigrant visa or green card by virtue of the relationship to the fiancé visa petitioner and a marriage within 90 days of admission. If no marriage is entered into between the petitioner and the fiancé visa holder within 90 days of admission, there is no available option except to leave the United States to avoid becoming an undocumented immigrant. Marrying another U.S. citizen will not be a solution for the fiancé visa holder who failed to marry the initial petitioner. This is the unfortunate consequence notwithstanding the fact that the subsequent marriage to a U.S. citizen is valid.
Divorced from the Petitioner
If marriage to the fiancé visa petitioner is a critical requirement, what happens if marriage occurred but the petitioner divorces her petitioned spouse before the latter obtains the green card? The Board of Immigration Appeals ruled in Matter of Sesay 25 I&N Dec 431 (BIA 2011), that fiancé visa holder will still have the opportunity to get the green card despite the divorce if she can prove that she entered into a good faith marriage within 90 days of admission to the United States. Based on this decision, the spouse who entered with a fiancé visa has the burden of proving that the marriage with the petitioner was real and was not a fraudulent marriage. This Sesay ruling opened the door to those who were abandoned or divorced by their petitioners.
Proving Good Faith Marriage
A key factor in proving good faith marriage is the intention of the parties to the marriage. There must be the intent to establish a life together as a married couple. The usual evidence submitted to prove good faith marriage includes: (1) documentation showing joint ownership o property; (2) lease showing joint tenancy of a common residence; (3) documentation showing a commingling of financial resources; (4) birth certificates of children born to the marriage; (5) affidavits of third parties having knowledge of the bona fides of the marital relationship.
For a fiancé visa holder who had a short-term marriage, submission of joint documents to prove the bona fide marriage is a challenge. Sometimes, the couple had a short-term relationship in the United States and a hostile petitioner who may withhold proof of relationship. What can be done in these short-term marital relationships is to obtain as many affidavits from close friends or individuals who knew about the relationship. These affidavits must contain personal account and detailed statements about the spouses prior to the divorce.
In addition to the affidavits, evidence of the relationship prior to the marriage may be submitted. These documents may include proof of money remittances from the U.S. citizen petitioner to the spouse, pictures and travel itineraries to show the visits made to the spouse during the period of courtship.
Documenting the Relationship
Technology may have changed the manner of proving good faith relationship. With communication through text messages, Skype, Facebook and other forms of electronic communication, documenting the relationship may be challenging. However, if there is a way to print messages, it will be helpful to keep some of these messages to substantiate proof of a valid marriage.
In the case of Belinda, she will prevail on her appeal by invoking the ruling in the Matter of Sesay case. Once her case is remanded back to the immigration court, she must be prepared to submit proof of her bonafide marriage with Thomas to avoid being deported.
To avoid complicating future applications for immigrant visa, the fiancé of a U.S. citizen must be aware of the importance of documenting every stage of the relationship. More important than documenting the relationship is the practicality of spending enough time to get to know the petitioner before making a critical decision to marry abroad.
(Tancinco may be reached at firstname.lastname@example.org or at 887 7177 or 721 1963)