Petition denied based on petitioner’s prior fixed marriage

MANY people believe that once they obtain a green card through marriage, they are “home free” as far as their legal status is concerned. They are now green card holders. They can get divorced, remarry, file a petition for their new spouse, seek naturalization, etc.

Imagine a green card holder’s surprise when USCIS “reopened” his file, dug into his past, and concluded he obtained his green card through a fixed marriage.  This may be a sign of things to come under Trump, where a person’s immigration status and file (whether green card holder or US citizen) could be reopened, re-examined, and revoked.

In that case, a Filipino married a U.S. citizen and obtained lawful permanent residence through her petition in 2013. The couple later divorced in 2015, and he married another woman in 2016. He then petitioned his second wife in the F-2A category as the spouse of a lawful permanent resident. Unfortunately, USCIS denied the petition based on the petitioner’s prior “fixed marriage” with his first wife.

What was interesting in the denial was USCIS concluded that the petitioner had “submitted sufficient evidence that established a bona fide relationship” between himself and his new wife. However, the problem was he “did not establish by clear and convincing evidence” that his marriage to his U.S. citizen first wife was bona fide. In other words, even though he had a green card for several years, and, in approving the green card, USCIS was satisfied his first marriage was bona fide, USCIS reopened HIS adjustment case as part of processing his petition for his second wife, and concluded his first marriage was fixed.

USCIS noted that “little evidence was submitted to establish the claimed relationship.” In other words, he supposedly did not provide sufficient documentation concerning the bona fides of his first marriage. If that were the case, why did USCIS approve the case in the first place? Why was the documentation and evidence sufficient when it was originally submitted, but now, years later, USCIS said it was not?

The Denial noted that even though he had submitted evidence/proof of joint documents in connection with his first marriage, including joint tax returns, joint utility bills, joint bank statements, dozens of pictures, etc., this evidence/documentation now did “not reflect an ongoing relationship existed outside of the documentation.” The Decision concluded that because the person did not establish by clear and convincing evidence that he had a bona fide marriage with his first wife, or that he and his first wife shared the emotional, economic or domestic bonds normally associated with marriage, his current petition for his second wife was being denied.

What can also happen is he could now be placed in deportation/removal proceedings, with USCIS attempting to revoke his green card on the basis it was obtained “unlawfully” through a fixed marriage.

Given this new era of Trump’s strict immigration enforcement, including going back and reopening a person’s old immigration file, people should consider seeking the advice and representation of attorneys, rather than trying to do it themselves. In the past, it may have been considered a relatively simple case of a spouse petitioning a spouse. Who would have thought, that a person who was already granted a green card because the evidence was sufficient at that time, that USCIS would take a “second look” and determine the previous evidence is now insufficient, and the person (even if now a petitioner) obtained a green card unlawfully, his green card could be revoked and be placed in removal/deportation?

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Michael J. Gurfinkel has been an attorney for over 35 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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Atty. Michael Gurfinkel
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