Raquel was married to Walter for many years. They have two children. Walter left the family home after eight years of marriage and never communicated with Raquel and her two children. Fours years after Walter’s disappearance, Raquel obtained a judicial declaration of presumption of death of Walter.
Joshua, a US citizen, filed a fiancé visa petition on behalf of Raquel and derivative visas for two minor children. Raquel was able to fly to the US on a fiancé visa with her children. Joshua and Raquel got married in California. During the adjustment of status interview, Raquel was questioned about the “death” of her prior spouse. She submitted all documents relating to the presumption of death which the immigration examiner questioned. An investigation was initiated by the USCIS in Manila and it was discovered that Walter is still alive and was living with another woman. Raquel’s application for green card was denied because USCIS found Raquel to still be validly married to his “first” husband. Raquel, thereafter, was advised to just file for Annulment of marriage in California and then remarry Joshua.
Relevance of Marital Status
Many immigration benefits that are applied for depends on the marital status of the visa applicant. Aside from obtaining green card through marriage to a US citizen, there are other benefits where marital status is relevant. For petitions under first preference category (or petition by US citizen on behalf of adult unmarried children) and second preference category ( petition by green card holder parents on behalf of adult unmarried children) the beneficiary child should remain “unmarried” until the prospective immigrant reaches the US and obtain the green card. Thereafter, a marriage may be entered into without jeopardizing the validity of the green card. If it is discovered that there was a civil marriage or a prior marriage that was not dissolved or annulled the immigrant visa shall be construed as improperly issued and thus subject to rescission in deportation/removal court.
The same situation may arise also in petitioning stepchildren of US citizens. If the marriage between the US citizen stepfather and the natural mother is void because of a pre-existing marriage that was not dissolved, then no immigration benefits will be conferred to the stepchildren.
Self petitioning widows of US citizens are also at risk of being denied visas if it is discovered that there was a prior marriage that was not annulled by the petitioning widow before marrying the US citizen spouse.
Termination of Prior Marriages
When an individual marries more than once, the party applying for immigration benefit must show evidence of the termination of the first marriages as well as the existence and validity of the second marriage. The person seeking the immigration benefit of a marriage has the burden of establishing the validity of the marriage.
Proving that the prior marriage is terminated may either be through court documents granting annulment or dissolution of the marriage. The USCIS generally recognizes annulment granted in a foreign country such as in the Philippines, as a matter of comity, as long as that particular court had jurisdiction to grant the annulment.
Establishment of the validity of dissolution can be fairly complex requiring the consular or immigration officer to become familiar with the type of foreign divorce in the country where it was obtained. In the Philippines where divorce is not recognize, Filipino nationals seeking immigration benefits based on subsequent marriage must prove that prior marriages have been declared validly annulled. The same goes with those individuals under the first and second preference category where they should prove that there was no marriage at the time they were petitioned.
Marriages Void From the Beginning
There is an important distinction between void ab initio and voidable marriages for purposes of immigration benefits. Annulment decree may state that marriages are void from the beginning (ab initio) and that the effect of the annulment decree is like there was no marriage that occurred. On voidable marriages, they are considered valid marriages until they are declared as void by the court.
The immigration authorities usually do not question the validity of divorce where it was obtained where one of the parties was physically present with the court’s jurisdiction. Collateral attack on divorces is beyond normal adjudication precluded by the principle of comity.
It becomes complicated for immigration examiners because there are certain cases where annulment decree is not given retroactive effect even if it is void ab initio. This is when there are cases of fraud, misrepresentation or manipulation of the immigration law. When no retroactive effect is given to the annulment, an unexpected consequence is usually faced resulting in denial of visas.
Truth about Marital Status
Marital status is a key component in obtaining visas. First and second preference immigrant cases and marriage to US citizens are almost always investigated for prior marriages. The red flag is raised especially when the visa applicant has children. The birth certificates of the children usually have dates of marriage of parents and further investigation is conducted until the truth is discovered.
There is a growing trend of denying petitions on technical and mechanical grounds. Careful attention to minor factual discrepancies in documents submitted, correcting them when possible or explaining them when not possible is advisable than later on reacting to adverse consequences. The truth will come out and they will eventually discover what you have done no matter how much dirt you put over it. If it is not discovered soon, it will come out in the most unexpected way.
(Tancinco may be reached at law@tancinco.com or at 887 7177).
