Immigration Corner | I want my ex-husband to file for me

Dear Mrs Walker-Huntington,

I hope you can assist me with this question. My ex-husband, with whom I share children, has been married for five years to a US citizen and the marriage is on the brink of being dissolved. He is now showing some interest in getting back together with me after his innumerable mistakes. If we were to remarry, can he file for me? We have been separated from 2015 and the divorce finalised in 2017.

Please advise. Thank you.

– AM

Dear AM,

Whenever a person obtains their US residency through marriage to a US citizen or green card holder, divorces that citizen spouse/green card holder and turns around and remarries a prior spouse or someone with whom they had children, – that situation raises a red flag.

There is a tremendous amount of marriage fraud that transpires in the context of US immigration law, and marriage petitions for US residency are subject to the strictest of scrutiny. So much scrutiny that sometimes valid marriages are deemed fraudulent when they are not. There is a barrier to someone filing for a new spouse if:

“. . . you gained lawful permanent resident status through a prior marriage to a US citizen or lawful permanent resident, unless:

A. You are now a naturalised US citizen;

B. You have been a lawful permanent resident for at least five years;

C. You can establish by clear and convincing evidence that you did not enter the prior marriage (through which you gained your lawful permanent resident status) in order to evade any US immigration law; or

D. Your prior marriage through which you gained your immigrant status was terminated by the death of your former spouse.”

Notwithstanding that half of all marriages in America end in divorce, and no matter where you live – things happen, and people fall in and out of love all the time, it is still a situation that would raise a higher level of scrutiny. It is not inconceivable that a divorced couple could rekindle their relationship – especially when there are children involved.

It is strongly recommended that even if your ex is now a US citizen, that he secures evidence to prove that his US citizen marriage was a valid relationship, because nothing prevents USCIS or the US Embassy at the time of your immigrant visa interview from asking for this evidence. The situation could not only lead to the denial of your green card application, but could also place your ex-husband’s status into question if the US government believes that his marriage, from which he gained US residency, was fraudulent. The circumstances do make your case more difficult, but it is not insurmountable.

Dahlia A. Walker-Huntington, Esq, is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal and international law in Florida. She is a diversity and inclusion consultant, mediator, and former special magistrate and hearing officer in Broward County, Florida. info@walkerhuntington.com