[COLUMN] ‘Separated’ is not ‘single’

DEAR Atty. Gurfinkel:

I entered the U.S. on a tourist visa and then overstayed and am out of status.  My U.S. citizen boyfriend recently proposed to me, and we plan on getting married and have him petition me.

Also, years ago, I married someone else in the Philippines.  But he abandoned me, he already has another family, and we have not seen or spoken with each other in years.  Since we married in the Philippines and have been separated for so long, would there be any problem in now marrying my boyfriend and having him petition me?

Very truly yours,

Dear MA:

If a person has ever been married, and that marriage was valid in the place/country of celebration, that marriage remains valid for U.S. immigration purposes. The person cannot lawfully remarry (or marry a second spouse) without first terminating all prior marriages. Otherwise, the marriage to the second spouse would be considered bigamous, void ab initio (from the beginning), and there would be no “petitionable relationship” with the 2nd spouse. Any green card obtained through such a marital petition would be fraudulent, making the person subject to having their green card revoked and being put in deportation/removal proceedings.

It does not matter how many years you have been separated or whether your original spouse has a new family.  Unless that marriage is terminated, you cannot remarry anyone else.

There are several ways a marriage can be terminated:

  • Divorce in the U.S. If a person is already in the U.S., they could divorce the first spouse in the U.S., even though their marriage took place in the Philippines. An annulment in the Philippines would not necessarily be required. This is because if a divorce is valid in the place (jurisdiction) it was obtained, then it would be valid and recognized for U.S. immigration purposes.
  • Annulment in the Philippines. If a person is in the Philippines, then annulment might be their only option. If they are in the U.S., annulment in the Philippines could present issues, because if they are out of status and need to travel back to the Philippines for court hearings, they could be subject to the 3/10-year bar. Also, in some cases, it could take years for a Philippine annulment.
  • Death of prior spouse. If the prior spouse has already died, then a person could remarry as a widow or widower. However, if the previous spouse was still alive at the time of the second marriage, and died later, that could present issues, because technically, on the date of the second marriage, the person was still married to their first spouse and the marriage would have been bigamous as of the date of marriage.

I once had a consultation, where a Filipina had married a U.S. citizen and the couple came to me on a Friday in connection with a marital interview that was to take place the following Tuesday.  She advised that she was still married to her first husband in the Philippines. We stopped that interview, she obtained a divorce in the U.S., re-married the American, and was later able to get a “clean” legal green card.

If you plan to be petitioned by a U.S. citizen spouse, but have a previous marriage, I would recommend you consult with an attorney who can evaluate the situation and determine the best course of action, and could make sure that you are lawfully/legally married to your new spouse, and that your green card was obtained lawfully rather than fraudulently.

* * *

Michael J. Gurfinkel has been an attorney for over 40 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different, and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories,” endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.

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