Remarriage when your spouse disappears?

I come across a least a few times a year the situation where one of my clients has been married multiple times and now wishes to sponsor an immigrant spouse in their latest marriage that doesn’t have all of the divorce decrees or death certificates from prior spouse is to show that they have the legal right to marry the immigrant in their latest marriage.  The US citizen petitioner typically has two or three divorce decrees but in one of the marriage is somewhere in between these decrees, they either for that to file for divorce or didn’t file at all because their spouse just disappeared.  Without either a divorce or death decree from a prior marriage, U.S. Citizenship and Immigration Services (CIS), the agency in charge of granting the green card to the immigrant spouse, is likely to conclude that the current marriage to the foreign national is legally invalid and bigamous because the US citizen petitioner never got divorced from their prior spouse who disappeared. 

In a state of California, for example, the family code has a special provision for this “presumed dead” spouse situation.  If the US citizen or permanent resident petitioner believed that their former spouse was dead, any marriage entered into after this (with the immigrant, for instance), would be considered valid as it is not automatically void – it is voidable.  

When a marriage is voidable as opposed to void, the marriage remains valid until a formal nullity decree is granted by a family court judge.  Logically, the only person who would bring a nullity action, though, to invalidate the later and current marriage to the immigrant would be the former spouse who has since disappeared.  This would only make sense if the former spouse all of a sudden arose from the dead or came back after years of disappearing and wanted to keep their marriage intact.

Therefore, if this never happened (no nullity action was ever brought in court), the subsequent marriage to the foreign national is considered legal despite the absence of a divorce decree from the prior wife.  CIS recognizes voidable marriages as valid.  Always consult a family lawyer when determining if your situation falls within this loophole in California as there are certain requirements under the statute that must be met.  If you’re outside of California, there may be a similar family law provision or case in your state that may allow you to benefit from a disappearing spouse. 

Former Divorce Can Screw Up Green Card Case

Obtaining a green card based on marriage can seem straightforward unless either the U.S. citizen petitioner or the foreign national spouse has ever been married before.  If they both were living in the same state and were married and divorced in that state, the former divorces may hold up in court.  Even either spouse has been divorced in another state, their former spouse was not present in the state when they got divorced, or either has received a divorce decree from another country, you should think twice before going ahead with a new green card case based on a marriage before you have those divorce decrees analyzed by competent family lawyer in your state.  

• CIS does not have to recognize the legitimacy of the foreign divorce Decree or another state’s divorce decree if CIS finds that the state where the parties are living in does not recognize the Decree due to its own jurisdiction issues, family code requirements or public policy. 

This can be an extremely confusing area of the law. Because of differing State family laws, a couple could have completely different outcome on whether a divorce or marriage is recognized depending on the particular state they live in.  And if this is discovered after they married and when the marriage falls apart and a potential green card is on the line, this could derail the divorce case for a spouse hoping for alimony and a share of the assets if the marriage the dissolution is based on is invalid under State law. This also derails the federal immigration case if the spouse obtained their permanent residency based on the presumed validity of the marriage when they find out that the marriage wasn’t valid to begin with because their prior divorce decree or their spouse’s prior divorce decree wasn’t valid.  Just because you have a divorce decree signed by a judge either in another state, in your own state, or in a foreign country, does not mean that CIS will recognize the Decree as being valid. Further, there are federal monetary fines & possible imprisonment, as well as deportation consequences if marriage fraud or bigamy is implicated.  

So how do you know for sure if your prior paperwork will hold up if you want to sponsor a subsequent spouse for a green card?  Always start with consulting a competent family lawyer in your jurisdiction. That lawyer will need to know the location of both spouses who were party to the divorce at the time the divorce was filed and how long they’ve been living in that jurisdiction for starters.  Often, a state will not recognize a quickie divorce such as one obtained from the Dominican Republic or other countries that don’t require residency prior to filing for divorce, if the state where the couple were residing at the time of the divorce had jurisdiction of the couple and the couple had to legally file in that state; they can avoid their own state’s laws by just crossing the border.  You don’t want your whole case resting on a house of cards that could collapse if one divorce decree does not hold up later down the line.  It’s worth the consultation fee to speak to a competent family lawyer.

Kim Kardashian's Aussie Trips Highlight Visa Fraud Problems Couples Face

Kim Kardashian is on an Australian immigration watch list now due to her multiple trips to Australia taken to promote her handbag line and reality TV show. The cardinal rule of visitor visas in the US is that you are here to visit, not work. Aussies feel the same way and expect her to get a work permit or other work related visa for this type of "visit." Many couples I encounter in consultations run into conflicts with this tourist visa problem and what CBP thinks is a conflicting intent. If you plan to work in the US, then you need to enter on a B-1 but can't be paid in the US and have to have a foreign employer (this equivalent of this is perhaps what Ms. Kim should have had when she entered Australia); you can't enter on a B-2 in the US and expect to work. If you really want to work for a US employer or promote your business, you should apply for an H-1B, H-3, J-1, or other form of work related visa.

CBP is also on the look out for foreign nationals entering the US on visitor's visas with the ultimate intent to marry their US citizen spouses and overstay their visas. The fact that they're engaged or have these plans can lead CBP to deny a foreign national entry into the US, because the foreign national is violating the terms of their visa. To obtain a tourist visa, the foreign national had to convince the issuing consulate and the CBP officer at the airport when trying to enter the US that they plan to go back home at the end of their visit (just visiting). Marrying a U.S. citizen shows the opposite of this intent in most situations, unless you can show that the US citizen lives outside of the US or they plan to live elsewhere, which is a difficult burden to meet when faced with a CBP officer.

Lies Discovered by Immigration After You Get Your Green Card

What happens if you lied to immigration to get your green card in the first place or you were inadmissible at the time of adjustment in the United States and CIS found this out after you’ve received your green card? CIS can start immigration proceedings against you by issuing an NTA. You may have relief in immigration court but generally, it's best to stay out of there!

The November 7 USCIS policy memo released by U.S. Citizenship And Immigration Services on when an officer must issue an NTA or refer the file to ICE for determination as to whether an NTA can be issued also affects those are already permanent residents. The memo highlights two situations in which NTAs can be issued when someone applies for citizenship. If the citizenship case involves fraud, the case must be referred to the Review Panel for a decision at to whether an NTA should be issued. There is no discretion; it must be referred. The review panel is assembled at the district office that is deciding the citizenship case. A permanent resident who was convicted of a crime that is considered an egregious public safety case after the time they became a resident must also be mandatorily referred to ICE for determination as to whether an NTA will be issued. Naturalization applications that involve a non-egregious criminal conviction can still be denied on good moral character grounds. If the crime is so old that it falls outside of the good moral character, CIS can make a written recommendation to the Review Board to issue an NTA and this recommendation is sent to a special NTA review panel that holds the naturalization case until removal proceedings have concluded. The NTA will not be issued though until a CIS Review Panel agrees with direct their recommendation of the officer who discovered the fraud. The review panel is located at the CIS office handling the case. The district director who gets involved if they review panel cannot reach a consensus on whether an NTA should be issued. If the NTA is issued, the naturalization application with placed on hold until removal proceedings have ended. But if the review panel does not issue an NTA, the underlying naturalization case will be denied. The only good part of this is that the immigrant avoids removal even though cannot benefit citizenship.

If the review panel decides not to issue the NTA or once proceedings have ended, the naturalization case can be adjudicated an approved if no other grounds block the issuance of approval. So, basically, it if a citizenship case involves past or current fraud, the NTA issuance is not automatic which is generally good news. However, with this memo, it is still unknown as to whether immigrants can provide more documentation to the review panel or appear in person before the panel to challenge the charges against them. We'll have to see how this new policy unfolds in future cases . . .

CIS finally issues "guidance" on when officers will issue NTAs for criminal cases

U.S. Citizenship and Immigration Services announced a new policy today to guide officers in knowing when to issue notices to appear (NTA). An NTA is the charging document that’s filed with the immigration court to place in immigrant into removal proceedings. Once an NTA is issued an accepted by the court, CIS no longer has jurisdiction and the immigrant is faced with dealing with an immigration judge and ice trial counsel who’s trying to get the deported. By law in under the statute, NTA’s have to be issued in certain circumstances. But there are many types is cases where NTA’s are not automatic and this is where this memo is most illustrative. CIS will forward certain types of immigrants who have criminal backgrounds to ice for ice to determine if ice wants to issue an NTA. These include cases egregious public safety cases involving murder, rape, or section abuse of a minor, trafficking and firearms, or fences involving firearms, crimes of violence, ransom, slavery, child pornography, alien smuggling, suspected street gang members or Interpol hits. This list will also affects immigrants who have felonies and have illegally reentered the United States after receiving a removal order. Non egregious public safety criminal cases will also be referred to ice, even if someone is applying for citizenship and is our rate permanent resident. In these cases, it CIS will not issue an NTA itself if ice decides to not issue an NTA. One of the more troubling aspects of this memo is that CIS will refer all cases to ice in which an immigration benefits application has been denied because the person failed to register with NSEERS. This was a failed program that Ast all male immigrants of a certain age from countries identified as harboring terrorists to voluntarily register their whereabouts in the United States following the 911 attacks. Didn make much sense of the times since terrace would be unlikely to register their whereabouts and so it targeted and racially profiled against many people who are innocent of any wrongdoing. Another problem within NSEERS was that many people did not know about it and the program ended many years ago when they are applying for relief now, are denied for failure to comply with an old program that they can do anything about now.