The perils of remarrying your ex-spouse
After a divorce or annulment, it is not unusual that married couples sometimes reconcile and give their relationship a second chance by remarrying. While remarriages of couples can be considered as good faith marriages, the United States Citizenship and Immigration Services (USCIS) may consider these remarriages as a derogatory fact in obtaining future immigrant visas.
In what specific context does this occur?
Sid was married to Lorna in 1987. They have two children from their union. The employer of Sid sent him to the US for a corporate training program. When Sid arrived in the US, he bumped into Anna who was his former classmate in high school. During his short stay in the US, Anna and Sid developed an intimate relationship. After a few months, Sid divorced Lorna in a California court. After the decree of divorce was issued, Sid and Anna married in Reno, Nevada.
Anna filed an immigrant visa petition for Sid and his two minor children with the US Citizenship and Immigration Services. Sid was eventually able to obtain his green card; while his children also got their visas and arrived in the US. A short time after he was granted the green card, Sid’s affection towards Anna changed. He rarely slept at their conjugal home and had less communications with Anna. When confronted, Sid finally revealed his intention to leave Anna. He began living with his two minor children separately.
Anna was distressed by the situation and felt used by Sid. She thought that her relationship with Sid was genuine and in good faith but there was nothing that she could do. Anna cried about her situation and fell into a severe depression.
After a few years, Sid applied for US citizenship and it was approved. He also divorced Anna and continued residing with his minor children in an apartment he rented near his place of employment. Sid later decided to return briefly to the Philippines where he remarried his first spouse, Lorna. As soon as he got remarried to Lorna, he filed an immigrant visa petition for her so that they could reside again as a family in the US. What will happen to the petition of Lorna? Will Sid prevail in his plans of reuniting his family?
Sham marriage
In order to determine whether Sid’s petition for his first wife merits approval, the USCIS will examine the nature of Sid’s marriage to Anna as that was the source of his green card and later citizenship status. Sid’s marriage to the US citizen spouse must have been entered into in good faith and should not have been a sham marriage.
Relevant case law defines a sham marriage as a marriage that was entered into for the primary purpose of circumventing immigration laws with no intent of establishing a life together; a marriage that was entered solely for the purpose of obtaining a green card. Hence, the key in finding whether a marriage is fraudulent or a sham marriage is determining the “intent” of the married couple at the time of the marriage. Did they have the intent of establishing a life together at the time of the marriage?
The burden of showing whether the marriage was real lies with the beneficiary or the party seeking the green card. It requires proving a “state of mind” coupled with objective evidence. In assessing the evidence, USCIS will examine documentation submitted such as shared residence, co-mingling of funds, proof that the beneficiary was listed on the US citizen spouse’s insurance policies, property leases, income tax forms, bank accounts, etc.
In the case of Sid, he should convince the USCIS that his marriage to Anna was in good faith. However, his acts after issuance of his green card seemed to show a contrary intention. Though he may have had a genuine intention initially, his subsequent actions could indicate that his real intention was to reunite his first family in the US.
Unknown to Sid, Anna and her family wrote declarations and letters to the USCIS alleging that Sid “used” Anna just to obtain his green card and that their marriage was entered into fraudulently from the beginning. Detailed testimonies were submitted to prove the sham marriage. Hence, despite a prior finding of good faith marriage, the legal consequences of the claims it was a fraudulent marriage will still have adverse effects on his future petitions.
Penalties of fraud
If Sid was still a green card holder, his status would have been revoked after the USCIS determination of a fraudulent marriage. Now that he is a US citizen, he may run the risk of having his citizenship revoked as it was based on fraud. This will prevent him from filing future petitions for immigration benefits.
Aside from the civil consequence of marriage fraud, there is a possibility that criminal charges will be filed against him. If convicted of marriage fraud, he faces a penalty of up to five years imprisonment or a fine of $250,000 or both.
Marriage in good faith
Marital relationships, if not based on genuine “love,” may be complicated. Those who have seen cases similar to that of Sid may argue that this cannot be a fraudulent marriage but simply a case of a bad marriage. In the immigration context, differentiating a real marriage from a sham marriage is a matter of credibility and evidence. If indeed it was just a bad marriage, then the consequences mentioned above may not be applicable. Judgment depends on the facts of the case and the available evidence to defend one position or the
other.
(Atty. Lourdes Tancinco may be reached at [email protected] or at 7211963 or visit her website at www.tancinco.com)
