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Can A Permanent Resident, Sponsored By A Spouse Who Was Never Legally Divorced, Apply For Citizenship?


“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. Because of all the bad immigration news, 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 says they were never divorced. What should my uncle do?

(Submitted by Samuel R., Vista, CA)


This is a difficult situation. Your uncle should not file any papers 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.

He must figure out the truth.

Your uncle needs to look for the divorce papers they filed when he applied for his green card. At that point, he should visit an immigration lawyer or a family law attorney and ask them to look into his wife’s divorce records.

(Actually, he needs to know the truth for more than just immigration reasons.)

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.

By that I mean, assuming the statements of your uncle’s “wife” are true, there exists a danger the government will figure out her divorce was invalid and 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 his worst nightmare come true.

Make no bones about it, your uncle should try to figure out if she knew the divorce was not valid when she filed papers for him.

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. He thinks the divorce is completed but the final paperwork was not certified by the court.

This also 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.

In any event, the problem is 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.

If that happens, and his wife’s divorce was invalid, he will likely face two problems.

These are the same two issues he’ll face if he applies for citizenship, the invalid divorce is discovered, and he is served with a Notice To Appear at immigration court.

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.