Can A Permanent Resident, Sponsored By A Spouse Who May Have Been Never Legally Divorced, Apply For Citizenship?
Question:
“My uncle wants to apply for citizenship but found out his wife lied to him. They were married over nine years ago. Then she filed papers for him to become a permanent resident. My uncle has finally decided to become a U.S. citizen. His wife left him two months ago and went back to her first husband. Now, she told my uncle that she was never divorced. What should my uncle do?
(Submitted by Samuel R., Vista, CA)
Answer:
This is a difficult situation. Your uncle should not file any papers for citizenship until he has time to talk to an immigration lawyer.
For now, let me share a few general thoughts.
First things first. If what your uncle’s wife told him is true, he is not a permanent resident. His green card is invalid because their marriage was not a legal marriage.
This means, of course, he is not eligible to naturalize and become a citizen.
However, his wife could be lying. She may simply be acting in spite towards your uncle.
Many spouses say mean things when they are angry at their former wives or husbands.
Hostile divorces and separations are not uncommon.
Your uncle must figure out the truth.
Your uncle needs to look for the divorce papers that his wife filed when he applied for his green card.
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From the start of his marriage green card efforts, his wife had to include a copy of her divorce certificate in the filing of the petition that she filed for him.
If the divorce was invalid, the petition should have been denied. This means, also, the permanent residence approval should not have been granted.
It is crucial for him to retain an immigration lawyer or a family law attorney to look into his wife’s divorce records.
If she did deceive the government, she could face legal consequences for having committed the act of bigamy.
Having practiced both green card and citizenship law for several years, it’s hard to imagine that his wife was able to fool not just your uncle, but also USCIS agents.
Immigration officials are trained to spot fraudulent marriage and dissolution documents. Even if his wife’s divorce took place in another country, they usually know how to prove whether the paperwork is authentic or not.
This is why I think she may be just trying to scare your uncle.
If she is just bluffing, then your uncle can go forward and seek citizenship – whether they are married or divorced.
But there is a bigger issue here.
It’s the possibility of immigration marital fraud.
Her comments should not be minimized.
By that I mean, assuming the statements of your uncle’s wife are true, there exists a possibility the government will discover her divorce was invalid – at which point the government may think he knowingly misled them about her divorce status when he obtained his green card.
Even if he was totally clueless, he will need to prove his innocence.
This would be his worst nightmare come true.
So allow me to repeat my earlier statement. Your uncle needs to have his old immigration paperwork and his wife’s divorce records checked to verify their authenticity.
Beware the impact of common law marriages. You did not mention where your uncle was born. In some countries, common law unions are considered legal marriages. When an immigrant from that country moves to the U.S. and gets married here, the government may dispute the U.S. marriage is valid if the immigrant was involved in a common law marriage abroad which was never officially ended.
In short, make no bones about it. Your uncle should try to figure out if his wife’s divorce to her former spouse was was not valid when she filed papers for your uncle.
On the other hand, even if her comments about her previous divorce are accurate, perhaps she barely found out about the problem.
Such a situation is not uncommon with green card via marriage cases.
It happens sometimes when a spouse goes through a marital break-up in one country and leaves. The immigrant thinks the divorce is completed but the final paperwork was not certified by the court.
(I mention this possibility because there is no indication whether your husband’s wife was born in the United States or was naturalized – and there is also no indication whether her previous marriage and divorce took place in the U.S. or abroad.)
A similar outcome sometimes occurs in cases where a spouse moves from one state to another while her divorce is pending.
The wife thinks her husband will wrap up filing the required final papers and documents. But he doesn’t follow up Or he does follow up but he does it incorrectly. He never goes back to court to clean up the errors. Thus, the divorce is not valid.
In any event, here is the cold reality. Your uncle does not know what happened in his wife’s case. As a result, he is possibly vulnerable to being deported.
Consider this potential scenario.
Because your uncle is a permanent resident, if something goes wrong one day, and he is arrested, he could be placed in immigration jail to face deportation charges.
The government looks through his paperwork. The invalid divorce is discovered.
If that happens, he will likely face two problems.
(Note these are the same two issues that would arise if he applies for citizenship where his wife’s invalid divorce is discovered.)
One, he’ll need to prove his innocence of possible marriage fraud charges stemming from his earlier relationship.
Two, he’ll have to fight deportation not as a lawful permanent resident, but as an immigrant living in the U.S. without permission.
I’m sure your uncle would think such an outcome is unfair.
He cannot let such thinking get in his way and do nothing.
And he should not delay. Instead, he needs to dig in and get to the bottom of his wife’s assertions.
In closing, I return to what I mentioned earlier. Your uncle needs to find a lawyer to help him, the sooner the better.
If you have an ongoing case right now, and you have immediate case-specific questions, you may want to visit our Citizenship And Naturalization Attorney Services page for more information.
Or you might want to schedule a 1-On-1 Personalized Strategy And Planning Session to discuss the ins and outs of your case in depth.
