Love marriage to a citizen doesn’t always result in a green card — Part 2

In a previous article, I discussed that while a good faith (love) marriage to a US citizen is one of the fastest and easiest ways to get a green card, not everyone is eligible or entitled to adjust status in the US, even if they marry a US citizen. In that previous article, I discussed some of the people who would not be entitled to get a green card in the US, through marriage to a US citizen, such as (a) crewmen or those who entered the US without inspection (unless they have 245(i)), (b) people who entered as a fiancée (K-1), but did not marry the American who petitioned them, and (c) someone previously caught in a fixed marriage.

Here are some other people who would also not qualify:

4. People who were previously ordered deported, UNLESS they have their case “reopened” by the Immigration Judge or Board of Immigration Appeals.

Some people may have been ordered deported/removed years ago (i.e. based on having filed for political asylum, etc.). Those persons may have been deported “in absentia” (they did not show up for their hearing and were deported in their absence), or, were ordered deported after a hearing in front of the Immigration Judge. Unfortunately, that deportation/removal order remains on their record. So, they could be subject to being picked-up and removed from the US at any time.

The only way around this is a “Motion to Reopen”, made to an Immigration Judge or BIA. However, the law provides for strict filing deadlines for bringing a Motion to Re-open, and by the time the person marries the citizen, those time deadlines have usually long passed. In addition, if a person was granted “voluntary departure” at his/her deportation/removal hearing, but did not leave, that would be another complication in the person’s ability to even bring a Motion to Reopen. (Please note that if a person never received a notice of his/her deportation proceeding, then there could be a chance to have his/her case reopened. But that would take a thorough, detailed, and in-depth analysis of court records and the circumstances surrounding the deportation/removal, to determine if the person is truly eligible on this particular ground.)

5. The person is still married to someone else.

Under both Philippine and US laws, if a person was married in accordance with the laws of the place where the marriage took place, that marriage is recognized in the US. Some people tell me that they thought that because they were married in the Philippines, they should be considered “single” in the US, and thus they do not need to get divorced in order to marry someone else. That is not the case. If a person was married in the Philippines, the Philippine marriage is recognized in the US. Other people may have married at an early age, and later “forgot” that they were previously married, or they think that because they have been separated from their spouse for many years, they automatically become single again.  The bottom line is that if you ever got married, whether in the US, the Philippines, or elsewhere, you’re still married to that person unless the first marriage is terminated (i.e. through divorce, death, annulment, etc.  Please note that divorce is recognized in the US.). So, if a person had a previous marriage, and that marriage was not terminated, any marriage to a US citizen will be considered “void” as bigamous, and the American could not petition you.

As you can see, not everyone who marries a citizen would be eligible to obtain a green card.  That is why it is important that if you are seeking any kind of immigration benefit, you should consult with a reputable attorney, who can analyze your situation and determine your eligibility for the benefits sought. Sometimes, there may be a chance, but you don’t want to apply for something that you are not entitled to and “rock the boat”, resulting in your ultimately being deported/removed.

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