rft_1992

my sister went to to US under B1/B2 visa(tourist)last june 2002,she was given 6 mos. to stay.she fell in love to USC and got married last feb 2003,w/c her tourist has been extended for another 6 mos..But the real problem is she's already married in the philippines,separated but not legally.she has 2 kids back home.I understand that the annulment now in the phils. could take 1-2 yrs.,i want to ask;
1.whats her status now in the US,is she subject for deportation?what can she do to avoid this to happen.She and her new husband,who knows all about her situation love each other so much.Are there any ways to correct this situation?
2can she file now for annulment of her previous marriage and wait for the result while staying in the US.Can she stay there legally while annulment is being processed?
3.Can her USC husband petition her kids?for how long?
pls give us some advice,i feel for her and after she gone through her previous marriage,she deserves to be happy.She didnt intend to break any immigration laws but you know what love can do just to stay together.Her USC husband didnt want her to comeback in the phils.,bec he was afraid she wont be able to go back in the US and so married her.

MrsLondon

I'm afraid the USC is NOT legally her husband! You cannot have 2 husbands in the US (or most countries either!) She may well be prosecuted for bigamy.

rft_1992

thank u for your reply,her first husband is in the phils.,they got married there.Since she is now into this situation.Are still any options to correct this?

Rete

Your sister does not have a US Citizen husband. She committed a crime by completing a State marriage license and saying she was free to marry. That, in itself, is punishable by a court of law. I don't know what the BCIS would do or think if this were to be known to them as well.

Under BCIS she has no grounds to stay in this country and adjust status. As he is not legally her husband, he cannot petition for the entry of her children to the US as he is not legally their step father.

Your sister may be in love but unfortunately, she and her husband are not married and she should return to her country to sort out her life. Why doesn't her live in lover move there to be with her and wait it out.

If they attempt to conceal her first marriage, I would think that it would come to light during the proceedings to get the children into the US. Just the fact that she has children is indicative that there might have been of a former marriage at one point.

Rete

lairdside

Unfortunately I think Mrs London is right on the money.

It would appear that your sister is not married to her USC husband. I also met my current husband when we were both seperated but still legally married to other people (we were both going through the process of a divorce). We both had to wait for our divorces to get married.

Your sister should proceed with the divorce/annulment in PI I imagine but I don't believe that this will "fix" the issue of her bigamous marriage. There is a specific question on the BCIS forms about polygamy also...

Bigamy is not a felony in all states (I have listed the ones below where I do not believe it is) however it may well be considered a "Crime of Moral Turptitude" by the BCIS.

Alaska
Arkansas
Hawaii (petty misdemeanor-- 30 days in jail)
Iowa
Maine
Missouri
Montana
Nebraska
New Jersey
Ohio
Pennsylvania
Rhode Island (misdemeanor, $1000)
Tennessee
Texas


IMHO your sister neds a good immigration attorney

rft_1992

thank you..what you all said was very helpful and informative,since her tourist visa is not expired yet until june,i think.i guess i have to advised her to comeback and file for the annulment....but,can she still return to US?and if her marriage has been annuled,can she still marry her USC..ok,may i say boyfriend without any hassles.Can these be possible?

A lot of people had done these and was misinformed.At least if someone w/ the same situation or planning to do this will read this post,they will have an idea of what they are getting in to and thus avoid similar situation.

lairdside

I'd have to check re: reciprocity in divorce for the US and PI but your sister may be able to obtain a divorce recognized by both countries in the US. I'm from the UK and that is what I did.

I'm on my way out of the door right now (to work) but if no-one else answers I'll look it up when I get back.

I've no real idea how much of an obstacle the bigamy under these circumstances would represent with regards to immigration. That's why I advised an immigration attorney

Elenfair

It's a complex situation...

I'd consult both a family lawyer and an immigration laywer ASAP.

If she returns to the philippines and gets a divorce, and then they apply for a K1, won't someone realise they already have a marriage filed with the state? They got legally married, and I assume they registered the marriage. If they filed for a K3, someone at BCIS processing the application may realise that the marriage certificate/license was issued BEFORE the divorce...

I don't know what would happen there. Never put ANYTHING out of the BCIS' reach. If you've been married before, they'll find out. If there are date discrepancies, the'll find out.

Get your sister and her lover to consult a lawyer. Sounds like a really complex situation!

Best of luck to her

Dekka's Angel

A big obstacle, potentially. The OP's sister needs a lawyer, and needs one badly. Right now, she has not overstayed her tourist visa (good news, there!) but she appears to have committed a crime of moral turpitude on US soil while here by virtue of her tourist visa - something I imagine the BCIS might well consider a Very Big Deal even if she and her "second husband" do not.

As described (a person, with knowledge that she was still legally married at the time, willfully celebrated a legal marriage with someone in the US), the OP's sister appears to have committed the crime of bigamy. Bigamy is absolutely, positively, a crime of moral turpitude. For *all* purposes - as has been the case ever since the moldy English common law was first written down. Whether it is classified as a felony or a misdemeanor doesn't change its essential character (as I understand it, the question of deportability from the US may turn on that distinction though).

Bigamy is definitely on the "short list" of "Crimes Committed Against Person, Family Relationship and Sexual Morality" used by the BCIS and State Department to determine admissibility though, so if she's convicted of it or ever admits to the "essential elements of the crime" (whether it is a crime will be determined by the laws in the place where the crime was allegedly committed, but it is a crime in every state of the union) she is inadmissible into the US. I do not know whether this type of inadmissibility if found allows for a waiver. Obviously, I have to defer to the immigration folks on this board on that.

The OP's sister's options for straightening this are not as broad as those available to folks in the UK and other places. There is, bluntly, NO "divorce" in the Philippines. In other words, when they say that marriage is for life, they really do mean it.

The closest thing the OP's sister can get to a divorce is a certificate from the Philippine government confirming that she can remarry because a non-Filipino spouse has divorced *her* outside the Philippines. But if her husband is Filipino (nationality, not ethnicity), it doesn't matter what country issues the divorce - it is not recognized. If she initiates it, no matter what country, it is not recognized. The divorce of a Filipino spouse by a non-Filipino spouse outside the Philippines is the only circumstance in which the term "divorce" has any meaning under Philippine law.

Failing this, the only option she has (unless she fits into that narrow exception) is an annulment. The Philippine law allowing annulment was originally written in a way such that annulments were quite rare and very hard to get. That's the bad news. The good news is, of course, that reality of married life in the Philippines (and everywhere else) is such that "nature has found a way" to handle this very harsh marriage law through amendments made in it a few years ago.

There are three types of annulment most commonly used where there really was a valid marriage but now one person wants out of it legally. The most common is under Article 36 of the Family Code of the Philippines, which provides that "A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization." Article 45 annulment works if at the time of entry into the marriage there was: (a) fraud not ratified by the defrauded spouse through continuing to live with the spouse after knowledge; (b) unsound mind unless sanity was regained during the marriage and the sane spouse remains after sanity; (c) force/coercion/duress unless it has ended and the forced spouse remained in the marriage after the end; (d) no parental consent for spouses between 18-21 years old until the marriage survives the parties turning 21 (e) physical incapacity to consummate which has not been cured and is not curable, or (f) one partner had a "serious" sexually transmitted disease that is not curable. Finally, there is Article 41, where a spouse has been gone gone for more than 4 years *and* the one remaining has a "well-founded belief that the absent spouse was already dead" (but it has a risky wildcard -- your old spouse can come back someday and file an affidavit saying "No I'm Not Dead", which voids the *new* marriage unless there is a final judgment of annulment already existing).

Perversely, the rife corruption present in much of the Philippine governmental structure, which has led to the US basically refusing to issue tourist visas to single women of marriageble age from the Philippines absent extraordinary circumstances (thus begging the question of how the OP's sister even got one, but that's a discussion for another time) actually works in favor of those trying to exit their marriages through annulment. So, annulments are now far easier to get than the law would indicate -- what I hear from friends is that they just take time, a psychologist willing to examine the parties and testify in favor (psychological evaluations are required), the attorney general's office of the Philippines not objecting (it can elect to and, in some cases such as a default in answering the petition for annulment, is actually *required* to), and a judge saying "marriage annulled" (sadly, I hear that graft to further all but the judicial step is common). 1-2 years for this entire process is not an unreasonable estimate from what I understand from friends from that country. It goes a bit faster if both spouses are working together to make things happen (itself a big no-no which if discovered will preclude annulment).

Finally, fixing things in the Philippines doesn't mean they are automatically fixed here. The OP's sister may require a decree of annulment or divorce to counteract the effect of a licensed US marriage. While all states treat bigamous marriages as void ab initio (from the moment it is entered into) this doesn't automatically mean the OP's sister can just pretend without more that her US marriage never happened. She needs a family lawyer in her state to tell her definitively whether she can truly just "walk away" with no consequence, no paperwork and no risk, or whether a filing for an annulment or divorce is required.

This is a messy situation, no doubt. Right now, she's married but she's not married. She has, if the facts are as described simply, committed a crime on US soil. Using a tourist visa. Making her possibly deportable. As well as making her inadmissible if she's convicted or discloses it (which of course is its own Catch 22; she will at some point have to either disclose prior marriages or not, under oath, and not disclosing it doesn't mean it won't be discovered if she really entered into a licensed marriage here in the US). Problem. Big. Lawyer. Now.

Folinskyinla

Hi:

Couldn't have said it better -- one slight little detail -- there is NOT divorce in the Phillipines. Which makes Filipino cases fun for laweyrs. ;-)

lairdside

I was 99.99% sure it would be classed as a CMT but didn't want to state it as being an absolute fact without checking and I didn't have time to do so as I was on my way to work...

I was hoping you might answer this post

lairdside

Yup - I think you just said what we were all thinking. I got as far as thinking what would happen if she did get her annulment and then got married to her bf "again"and the interesting situation that would be when they tried to explain it to the registrar and the BCIS......

I thought she may have to file for a divorce of some sort from her bf beofre they could marry - and what fun that would look like too....

Alzerom

Your grammar and syntax are so good I can't believe you missed these
simple rules, regulations, and laws.... 'here in the states'

Mrtravel

rft_1992 wrote:
    > my sister went to to US under B1/B2 visa(tourist)last june 2002,she was
    > given 6 mos. to stay.she fell in love to USC and got married last feb
    > 2003,w/c her tourist has been extended for another 6 mos..But the real
    > problem is she's already married in the philippines,separated but not
    > legally.she has 2 kids back home.I understand that the annulment now in
    > the phils. could take 1-2 yrs.,i want to ask;

The marriage in the US is NOT a legal marriage, plus she has committed a
felony called "bigamy"

    > 1.whats her status now in the US,is she subject for deportation?what can
    > she do to avoid this to happen.She and her new husband,who knows all
    > about her situation love each other so much.Are there any ways to
    > correct this situation?

He is not legally her husband.
She is subject to criminal prosecution and deportation.

    > 2can she file now for annulment of her previous marriage and wait for
    > the result while staying in the US.Can she stay there legally while
    > annulment is being processed?

She has no status to remain in the US, she is not married to the USC.

    > 3.Can her USC husband petition her kids?for how long?

Since they are not married, then he is not a stepparent, and would need
to adopt them to petition for them. Would he have the consent of their
father?

    > pls give us some advice,i feel for her and after she gone through her
    > previous marriage,she deserves to be happy.She didnt intend to break any
    > immigration laws but you know what love can do just to stay together.Her
    > USC husband didnt want her to comeback in the phils.,bec he was afraid
    > she wont be able to go back in the US and so married her.


She hasn't yet broken any immigration law that I am aware of, however
she has broken at least one state law. The marriage is invalid and she
has no standing to adjust status.

I would advise she get an immigration lawyer and a criminal lawyer.

Mrtravel

rft_1992 wrote:
    > Originally posted by MrsLondon
    >
    >>I'm afraid the USC is NOT legally her husband! You cannot have 2
    >>husbands in the US (or most countries either!) She may well be
    >>prosecuted for bigamy.
    >
    > thank u for your reply,her first husband is in the phils.,they got
    > married there.Since she is now into this situation.Are still any options
    > to correct this?
    >

She has already broken a state's bigamy law. The marriage is invalid and
she can be prosecuted for a felony. If she gets a
divorce/annulment/widowhood from the first husband, then she could marry
again to her USC boyfriend. Why did she think she could get married if
she was already married?