Will I Lose My Green Card?

Here’s a great comment that came in this morning.  It’s a very serious concern to the reader who posed the question.  In addition there are a lot of my readers who have been in such a situation or (by the laws of probability) may have to face it in the future.

Standard Disclaimer:  remember I am not a lawyer and everything I write here is my personal opinion and not legal advice.  I will say this, though.  I have a lot of experience working with lawyers in the realm of divorce and the scariest thing about so many of the comments and questions is that people seem to think they can’t afford a lawyer in divorce situations. 

Trust me, you can not afford NOT to consult  lawyer in such situations.  You may give away a small fortune in property and income you may be entitled to by “doing it yourself” or even worse, letting a spouse “do the divorce for you”. 

If you were breeding uncontrollably or unable to breath, you’d consult a physician, wouldn’t you?  A divorce is serious business, I do NOT advise anyone to “Do it yourself”.  ‘Nuf said, on to the meat of the article…)

My reader, April writes:

Hello Phil.

i am married to an American man and he is planning to file a divorce but we are married in the Philippines.  My question is, can i still marry to another American man here in the US after the divorce is final even if I’m married in the Philippines?

I have a 2 years permanent green card, will i get deported back to the Philippines if we got divorced before the expiration date of my card?

Please help me what to do to renew my card even without my husband so i can still stay here in the US.

@ April

Thanks for writing.  Actually you have three separate questions here, all are important,so I edited your comment slightly7 to separate them out and we’ll tackle each one independently, OK?

1. First Question: Can I still marry to another American man here in the US after the divorce is final even if I’m married in the Philippines?

USCIS1Legally the answer would be no.  Absolutely no.  As a Philippine citizen you are subject to the laws of the Philippines world-wide, according to the Philippine Family Code … the part of Philippine law which governs marriages.  Your US LPR (Green card … Legal Permanent Resident) status does nothing to change this.  You should read this article:

Philippine Marriage and the Am I Considered Married Question

And perhaps this one:

Can I Get Married Even If I Am Already Married?

When you phrase the question with just the word ‘can’, you may also be asking if the marriage can take place.  In other words, will the ‘marriage police” stop you?

The answer to that is no.  Marriage in all 50 of the US states is pretty much based on the honor system (backed by the law). 

If you go, with your new husband to be, to the proper agency in your state and ask for a marriage license, you are required to swear or affirm that you are legally capable of marriage.  That is, not married to someone else.  You can. if you wish to, so swear and get a license and be married.  No problem at all, except for two issues.

The first issue is conscience.  You and you alone can decide this.  I don’t give moral guidance.  You have to decide if you want you new marriage to start with a lie, if you want to do something which you know to be wrong, in order to make something happen quickly and easily.  Think this through carefully, you will live with this decision the rest of your life.

The second issue is legality and possible immigration issues.  As we are going to cover next, you normally will not lose your rights to Permanent Resident status because of a divorce.  But you may need other legal support from your new husband.  You also do not want to leave yourself open to being in the situation where your new marriage is technically illegal.  I can’t say how strong the possibility is that this “unmarried in the US” but still “married in the Philippines” situation actually Will cause you a problem in the future, but it certainly exists, and it would be unwise to leave yourself open to the legal trap.

So here’s the suggested strategy based on the way you tell me things are going.

1. Hubby number one files for divorce in whatever US state you are living in.

2. Divorce is granted.

3. You then take the US divorce and use it to petition in the proper Philippines court seeking  Judicial Recognition of a Foreign Divorce Decree (more information by clicking the link)

4. After the Philippine court grants the recognition of the divorce you then marry Hubby number 2.



You will then be legal and morally straight in anyone’s view and you can start you new marriage confident that you have done the right thing.  Will it take some time and expense?  Yes it will.   Would it be worth it, in my opinion?  Absolutely.

A final thought on the “Just get married in the US even if you are still married in the Philippines” strategy.  Here’s a quote (extract) from the USCIS’s own informative pamphlet on gaining permanent residence in the US and possible citizenship later.  It enumerates the things a LPR must NOT do if they don’t wish to lose their permanent resident status.  (my emphasis)

Consequences of Criminal Behavior for Permanent Residents

There are also serious consequences for you as a permanent resident if you:

• Lie to get immigration benefits for yourself or someone else.
….
• Are married to more than one person at the same time.
….

I think that pretty much says it all, does it not?

2. Second Question: I have a 2 years permanent green card, will i get deported back to the Philippines if we got divorced?

Quick answer?  No, not at all.

As longs as original the marriage was not a sham or for fraudulent purposes, divorce does not adversely affect a spouse’s immigration status after the spouse obtains a green card or permanent residence unconditionally and a divorce will not invalidate the green card or cause the U.S. Citizenship and Immigration Services (USCIS) to deny a citizenship application automatically.

Divorce may however pose doubts and require the divorced spouse seeking to obtain U.S. Citizenship to reassure the USCIS interviewing officer that the marriage was not a sham. A good way to prove that your marri
age was genuine is to take copies and originals of documents that show that you and your ex-spouse lived together, had joint bank accounts, and shared important and memorable moments together. Examples of documents include, home title or rent receipts or home lease in both names, joint bank account statements, credit card statements, photographs of both spouses on vacation, birth certificates of children born during the marriage, etc.

There are some negative factors, though.

First, divorce can affect the amount of time that it takes for you to obtain citizenship.  Most immigrants must wait for five years before they can become citizens.  However, a permanent resident can obtain citizenship (naturalization) after three years of permanent residence as long as he or she was married to a U.S. citizen for at least three years before taking the citizenship test. If you divorce before those three years pass, you will need to wait five years before you can apply for naturalization.

3. Third Question: What to do to renew my card even without my husband so i can still stay here in the US?

Everything I have been talking about so far applies to permanent legal residents.  In your original question you said something which confuses me.  You said you have “2 years permanent green card”

This sounds to me as if you have a 2 year conditional green card.  A permanent card would have a 10 year expiration date.

The conditional status means that you and your husband together files the I-485 form to get your original green card.  At the two years of permanent residency then , normally, you and your husband would have to file again for removal of the ‘conditional” status.

If you two were still married, and as long as your marriage was legitimate (not a marriage made just to get you a Green card), then there would be no problem.

If you are divorced, then there is a small pro0blem.  Your husband can’t file for removal of the “conditional” status along with you, because he won’t be married to you any longer.

So what to do?

Your soon to be ‘Ex’ doesn’t “own you” because he originally signed the I-485.  Sadly, I have heard a lot of American men talk that way, trying to keep their wives “in line” by threatening all sorts of Immigration troubles for them if they aren’t subservient.

This is wrong.  It’s also spousal abuse, just as much as if he were physically abusive toward you.

Getting divorced does no5t take away your rights granted to you by your legal resident status.

After a divorce, the conditional green card holder must apply for a waiver to remove the condition without the help of his or her ex-spouse.

There are a few grounds for applying for that waiver:

  1. You married in good faith;
  2. You would experience extreme hardship if you were sent back to your original country
  3. Your spouse abused you physically, financially or emotionally

Sounds to me as if you should be able to find adequate grounds to file such a petition. 

But don’t delay.  If you wait until after your current conditional green card expires, the yes you could lose your status.

But no need to, just follow the USCI’s own rules and don’t put off taking action.  Don’t forget what I aid earlier too … you need a lawyer.  Godspeed.


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Comments

  1. Joe P says

    Hi Dave,

    thought I would chime in here since I have heard about this before. I did find this article on the web that talks about it half way down the page:

    http://lifebeyondthesea.com/?p=1629

    excerpt of the “info” that seems to relate to this topic:

    “WHAT IF I HAVE ALREADY MARRIED A FILIPINA.. AND WANT TO DIVORCE HER SO I CAN MARRY A DIFFERENT FILIPINA? DOES THE NO-DIVORCE ISSUE LEAVE HER MARRIED TO ME WHILE I’M MARRIED TO MY SECOND WIFE?”

    Believe it or not, up until 2005 this had been the Catch-22 scenario for many Filipina women. Let’s say ‘Joe’ arrives in the year 2000 and marries ‘Grace’, the Filipina. Two years later, Joe goes back home and gets a legal divorce on Grace. He is now free to re-marry. So, Joe returns to the Philippines to find that the Filipino courts still consider her married to him.. but he is no longer married her. He marries a second Filipina in 2003 and is now married to one woman.. although two women are married to him in return.

    This kept the first Filipina wife from being able to meet and marry ‘Bob’ after her husband ‘Joe’ divorced her, because the Filipino government didn’t acknowledge her as divorced. As you can imagine this caused a lot of hardship and heartache for many Filipinas.

    Fortunately.. in 2005 under President Aquino, his Executive Order modified a (then) recent revision of the Family Code to include an amendment giving Philippine citizens the right to re-marry when a legal divorce has been recognized by the home-country of the other (foreign) spouse. This act, only authorized just 7 years ago finally set free Filipina women to re-marry. Imagine meeting the woman of your dreams only to find out she is still ‘legally’ married with no ability to divorce?! Some Filipinas are still unaware of the change in the law and under the impression they cannot re-marry due to a previous marriage to a foreigner. But.. as long as that previous foreigner has divorced them legally in their own home-country, it now applies for them as well. For more details and verbiage on this Amendment.. you can View It Here.

    Not sure how to get the link to the amendment into the text here since is quite long…but figured I would pass this along for your look-see etc.

    • says

      Hoping to get some clarification on one point. Aquino was not President in 2005, so could not have made such an Executive Order. Was this issued under President Arroyo, or did I get totally confused? Thanks!

      • says

        @ MindanaoBob:

        I saw that too. I’m hoping Joe might look back and see what is going on there, because there certainly was no president Aquino in 2005. The first president Aquino was responsible for the legislation which somewhat fixed the “divorced while still married” issue, but it was long before 2005. The current president Aquino has not addressed this issue at all, to my knowledge. I’m also not aware of any action taken on this issue by president Aroyyo, who was the president in 2005 … bit perhaps she did play a role .. I don’t know.

        All this stuff gets too deep for me at times. the gist of the matter is, if a Philippine citizen gets divorced by a foreigner then s/he must file a petition in the courts of the Philippines to ask for judicial recognition of the divorce. If granted, then s/he is free to remarry … but it is never automatic. Must be ‘proven’ in court.

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