Chilean Immigrant Wins Spousal Green Card Despite Invalid Dominican Republic Divorce
Laura, a citizen of Chile, entered the U.S. on a tourist visa. During her visit, she was introduced to Cesar, a close friend of her brother-in-law.
They spent time together at a few social events, and over time, became attracted to each other. As her departure date grew nearer, Cesar began to think about how much he enjoyed and would miss her companionship.
So, about a month before her expiration date, he asked Laura to marry him. Two weeks later, they tied the knot in a civil ceremony. The following month, without seeking any legal advice, Cesar filed an I-130 petition to immigrate Laura. Looking at the paperwork, he assumed they were simple to complete.
Everything seemed to go smoothly . . . until the green card interview.
The USCIS officer denied the petition. Cesar had committed one of the most common mistakes in green card marriage cases.
He not provided proof of his divorce from his first wife.
Thinking more paperwork would fix the problem, Cesar asked his son to contact his ex-wife to obtain the entire set of paperwork. When it was received, he filed a new immigrant visa petition for Laura.
In the meantime, because she was a Chilean immigrant who had stayed in the U.S. past her visa expiration date, Laura was sent a notice to appear at immigration court. She now faced deportation charges.
Cesar’s divorce had taken place in the Dominican Republic over 15 years earlier. His former wife handled all the paperwork. Cesar signed documents, as requested, and mailed them back to his former wife. He never questioned the legitimacy of his divorce.
Once again, Cesar’s petition was denied.
First, the new paperwork did not cure the deficiency. It lacked the official certification required by USCIS regulations. Thus, the officer informed them that Cesar’s first divorce decree was still invalid.
Second, it was also rejected on the basis that he had filed it after Laura’s case was under the control of the immigration court.
Two months later, at Laura’s court hearing, the judge informed her that she needed to take active steps to have her marriage green card case transferred from USCIS to immigration court. Due to her confusion, Laura asked the judge for extra time to find a lawyer. The judge granted her request.
Feeling overwhelmed, Cesar and Laura came to our San Diego immigration law office to explore their options.
After reviewing their history, Carlos told them that Cesar needed a legal divorce from his first wife. He told them about two options: Cesar could either file for a divorce from his first spouse anew or hire counsel in Chili to help correct the mistakes in the old filing.
Under the first approach, and possibly under the second approach, Cesar and Laura would need to get married again.
Carlos stressed if the divorce could be finished quickly enough, the judge might send the case back to USCIS for a final decision. The next time, however, with an official divorce, Cesar and Laura’s application should qualify as a bona fide marriage, meaning Laura would be granted a green card.
Since both options would take several months, he told Cesar and Laura that the divorce papers had to be started as quickly as possible. Otherwise, Laura ran the risk of going to the next hearing as a single woman without any immediate grounds for potential relief. This could expose her to deportation.
Cesar initially leaned towards clarifying the records abroad.
However, after Carlos spoke to a few attorneys in Santo Domingo, the municipality in the Dominican Republic where Cesar’s divorce had taken place, he learned that locating and obtaining the records, almost two decades old, would take several weeks and perhaps up to 2 – 3 months.
There was also no guarantee the court would reopen the old proceedings and continue forward from that point. Even if the case was reopened, the court might decide against backdating the divorce. This would mean new divorce paperwork would have to be filed.
Cesar was unhappy with the options presented. Fearing his wife’s undocumented Chilean immigrant status would lead to her removal, he decided to think about his choices for a few days. When he did not call for a week, Carlos followed up.
Further delay, he explained, would not help Laura. A choice had to be made. After a long dialogue, Cesar finally resolved to pursue the first approach. He would file for a divorce in California.
Having previously practiced family law for over ten years, Carlos suggested seeking a non-contested mutually agreed divorce to speed things up. He reasoned that if Cesar’s ex-wife was cooperative, they could draft a settlement agreement on all possible issues, and this would lead to an earlier divorce date. This would protect Laura at immigration court.
Carlos believed proof of this filing would provide the court with enough reason to allow Laura another extension, while she awaited for Cesar’s divorce judgment to be issued.
As anticipated, Laura’s request for a continuance was granted.
With the help of his son, Cesar was able to complete his divorce in a timely manner. Less than a week after the divorce order was issued, Cesar and Laura married again. This time, it was a legal marriage.
At the next immigration court hearing, with proof of the divorce, the judge allowed Cesar to file a new petition to immigrate his wife.
A few months later, when evidence of the new petition was approved was submitted to the immigration court, the judge agreed to transfer the case back to USCIS to review Laura’s new application for permanent resident benefits.
As Carlos had planned from the outset, this approach worked and Laura became a new green card holder. She is now a U.S. citizen, living with Cesar and their three year old daughter in Imperial Beach, California.
No matter how difficult the road ahead may seem, do not give up without exploring all your options. This series of immigrant success stories is dedicated to those who refuse to stop believing that some day, somehow, victory will be theirs.
This article about immigrant family visa petitions and marriage green card issues is Example Number 9 on the different types of challenges and obstacles which immigration lawyer Carlos Batara has helped immigrants overcome.
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