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Divorce is not a major obstacle to getting the green card

Belinda met Thomas, an American citizen, while she was a foreign student in a university in California.  After her graduation,  Belinda  returned to Manila to work for their family business. Thereafter, Thomas filed a petition for a fiancé visa for Belinda so they could be together again. In less than a year, Belinda obtained her fiancé visa from the United States Embassy in Manila. She flew to Los Angeles and they got married in a civil ceremony.

Belinda later filed an application to obtain an immigrant visa. But a few weeks after she filed her application,  Belinda and Thomas  broke up.  Belinda discovered that Thomas had been seeing  another woman. The couple  divorced.

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Belinda’ s application for adjustment of status was denied and she was subjected to removal or  deportation proceedings.

A second marriage

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While her deportation proceedings were pending, Belinda married John, also a US  citizen. The latter filed a petition for Belinda and this petition was approved. Despite the approval of the petition, the immigration court  ordered Belinda 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 filed an appeal, which is still pending. In the meantime, she and John had   two children. Will the decision of the immigration court be reversed or will Belinda be deported?

Marriage to petitioner

The regulation is that a fiancé visa holder can only obtain immigrant status by virtue of the relationship to the fiancé petitioner. A marriage must be  entered into between the petitioner and the fiancé within 90 days of admission. Marrying another US citizen will not be a solution for the fiancé visa holder who failed to marry the initial petitioner.

If marriage to the fiancé visa petitioner is a critical requirement, what happens if marriage occurred but the petitioner divorces the petitioned spouse before the latter obtained the green card?

The Board of Immigration Appeals ruled in “Matter of Sesay” (2011) that a fiancé visa holder will still have the opportunity to get a green card despite the divorce if she can prove that she entered into the marriage in  good faith. The  fiancé visa holder then   has the burden of proving that the marriage with the petitioner was real and  not a fraudulent marriage.

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Proving good faith

A key factor in proving good faith in marriage is the intention of the parties. 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 of 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, proving a bona fide marriage can be a challenge. Sometimes, a hostile petitioner may withhold proof of the relationship.

What can be done is to obtain as many affidavits from close friends or individuals who knew about the relationship.

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 petitioner to the spouse, pictures and travel itineraries to show the visits made to the spouse during the period of courtship.

New technology

Technology may have changed the manner of proving a 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 prove a valid marriage.

In the case of Belinda, she will likely  prevail in her appeal by invoking the ruling in the Matter of Sesay case. But once her case is remanded back to the immigration court, she must be prepared to submit proof that her marriage to Thomas was  bona fide.

To avoid complicating future applications for immigrant visa, the fiancé of a US  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 law@tancinco.com or at 8877177 or 7211963)

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TAGS: Divorce, Migration, United States, US
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