Immigration Attorney Q&A
Q: Karl came to the U.S. on a tourist visa more than 12 years ago. His wife at the time, Angela, was given an H4 visa, and Karl was able to change his status to H1B. Before Karl's visa expired the marriage fell apart, and the couple got divorced. Karl's ex-wife Angela subsequently married a U.S. citizen, and Karl has been out of status for a little over 10 years. But Angela's marriage did not work out and she divorced her US citizen husband. Now she is a US citizen, living and working in a town near Karl, and the two divorcees have gotten back together. If they remarry, will Angela be able to petition United States Customs & Immigration Service (USCIS) for Karl's adjustment of status?
A: A US citizen may petition a spouse as an immediate relative. However, for a marriage to be valid, a prior divorce must be valid, and the divorce must be valid under the laws of the jurisdiction granting the divorce. This divorce decree must also be recognized in the state or country where the couple was residing.
For Karl, if the divorce was legally recognized, there should not be a problem with reconciliation, and remarrying his spouse again, but the main concern is whether Karl's spouse really had a valid marriage with the US citizen. If her marriage to the US citizen was only intended to obtain legal status, and both Karl and his spouse really did not separate, then the petition by his spouse may be denied. These are usually referred to as "sham divorces" in which a wife (or husband) may be considered to have entered into a fraudulent marriage. Although she is now a US citizen, there is a possibility that an investigation will be conducted not just focusing on Karl's marriage but on his wife Angela's previous marriage to the US citizen as well.
For more information about family immigration cases, or to make an appointment with an experienced U.S. immigration lawyer, contact the immigration law offices of Millar & Pérez Immigration Lawyers, PLLC at www.usborderlaw.com.Duncan Millar