Dilemmas resulting from sham divorces and remarriages

Remarriages are commonly looked upon as fraud in immigration circles.  A letter emailed to me by a reader raises this concern:

“I came here (US) on a tourist visa and I was able to change my status to H1B. My wife at the time was given an H4 visa. Before my visa expired our relationship fell apart, and we got divorced. She got married to a US citizen, and I’ve been out of status for 12 years now. Her marriage did not work out and she divorced her husband. Now, she’s a US citizen and is fighting breast cancer. I took care of her during her chemotherapy and we got back together. If we remarry, will she be able to petition me?” –Jim

A US citizen may petition a spouse as an immediate relative. For a marriage to be valid, a prior divorce must be valid. The divorce must be valid under the laws of the jurisdiction granting the divorce. This divorce decree must also be recognized in the state or country where the couple was residing.

In the case of Jim, if the divorce was legally recognized, there should not be a problem about reconciling and remarrying his spouse again. The main concern is whether Jim’s spouse really had a valid marriage with the US citizen. If the marriage to the US citizen was only intended to obtain legal status, and both Jim and his spouse really did not separate, then the petition by his spouse may be denied. These are usually referred to as “sham divorces” and the wife may be considered to have entered into a fraudulent marriage. While she is now a US citizen, there is still a possibility that an investigation will be conducted not just focusing on Jim’s marriage but on his wife’s marriage to the US citizen as well.

Not all fraudulent

Not all remarriage cases are fraudulent. If in the 12 years of their separation, they had indeed lived separately and subsequently reconciled, then the suspicion or presumption of fraud may be overcome. Jim may remarry. However, he should expect to undergo an extensive examination on the merits of their marriage and their prior divorce. His chance of receiving the green card depends on what proof is submitted or gathered by the immigration officer.

A real sham

In a related remarriage case of Anna and Roger, the US Citizenship and Immigration Services (USCIS) was right in its finding of fraud.

Roger was married to Anna in the Philippines. He left for the US on a visitor’s visa and then divorced Anna. This came as a surprise to his wife but Roger explained he needed to file this divorce to obtain his green card.

Thereafter, Roger married a US citizen, Michelle, and they lived together for two years. While married to Michelle, he continued to communicate with Anna. He visited Anna regularly in the Philippines. Anna and Roger had a child born during the time that Roger and Michelle were married. As soon as Roger got his green card, he abandoned Michelle and divorced her.

Roger then applied for naturalization to become a US citizen. During his naturalization interview, it was noticed in his application that he had a child from Anna while living with Michelle. This raised a red flag for the USCIS examiner and his case was investigated. Michelle signed a written document when the US immigration agents visited her. She said that Roger used her to get the green card and did not know that he was still having an affair with his ex-spouse.

Roger’s application for naturalization was denied. He subsequently went back to the Philippines to remarry Anna. He is, however, not allowed to remarry in the Philippines because their first marriage is still valid in the Philippines. Can he still file a petition for Anna and their child?

De facto marriage

While the Philippines does not recognize Jim’s divorce, his decree of divorce is recognized as valid in the state where it was obtained. It is good for purposes of remarrying a US citizen.

Unfortunately, Roger’s legal problem with the US Citizenship and Immigration Services is not whether the divorce is recognized for purposes of the petition. His main problem is that he committed “fraud” with regard to his marriage to Michelle. While the divorce is legally valid, his actions while he was still married to Michelle indicate that the divorce was actually a sham divorce.  Jim, in fact, still had a “de facto” marriage to Anne.

Roger will have to overcome legal obstacles not only in his petition for Anna but also in saving his own permanent resident status from being revoked.

Entering into marriage carries various rights and obligations for a couple.  Much as one desires to legalize one’s stay in the US, marrying for convenience and entering into a sham divorce should be avoided. In reality, sham marriages can result in serious adverse consequences and are usually compounding problems rather than solutions.

(Tancinco may be reached at [email protected] or at 02 887 7177 or 02 721 1963)