IMMIGRATION CORNER
By Michael J. Gurfinkel, Esq.

PLEASE allow me to share a letter I received from a client for this week’s column.

“Dear Atty. Gurfinkel:

“I came to the U.S. in 1993, and have not had any further contact with my spouse. I fell in love with an American citizen, and we would like to get married.

“I know that in order to marry my American fiancée, I need to be single. But I don’t want to go through the time and trouble of divorcing my existing spouse. Would it be O.K. for my relatives in the Philippines to obtain for me a fake “death certificate,” making me a widower, so I can marry my fiancée? I also heard that if a person has not seen or spoken with his/her spouse for more than four years, the law considers that missing spouse as being “dead.” Since I have not spoken to my spouse for over four years, am I now free to marry my American citizen fiancée?

“Very truly yours, T.M.”

Dear T.M.:

Under both Philippine and U.S. law, only unmarried persons could enter into a marriage. Thus, if you have a subsisting marriage, all your marriages that follow would be void and of no effect. Before you can marry again, your existing marriage must be legally terminated, either through annulment, divorce or death of your spouse. Therefore, if you marry your American citizen fiancée without legally terminating your marriage to your spouse, your marriage to the American citizen will be considered bigamous and void. If your American citizen “spouse” petitions you, and the U.S. Citizenship and Immigration Services (USCIS) discovers that your first marriage is still in force, the USCIS will deny the petition, and possibly start deportation/removal proceedings against you.

In your case, since your first wife may still be alive, and your first marriage has not been legally terminated, then you are not eligible to marry anybody else, including your American citizen fiancée. The USCIS, as well as the Embassy, are very wise to people trying to “get away with” or “get around” divorcing their first spouse, by pretending that the spouse died. The USCIS in the U.S. routinely conducts overseas investigations to verify documents provided by applicants, including death certificates, and USCIS searches official records, to make sure that the death certificate you gave them is real. If they find that there is no death certificate on file, they will catch your fraud, and then you will be in big trouble.

Recently, a couple came to my office for consultation. She was an American citizen, and he was a TNT (tago ng tago). They wanted to get married, and she would petition him. The man stated that he was a widower, and even presented a death certificate to me. He swore to me that he truly was a widower, and the death certificate was real. During the consultation, when I mentioned to him that the USCIS will check and verify his documents, he finally changed his story, and admitted that his first wife was still very much alive, but he just wanted to “save time and money” by “faking” her death.
My advice to him, and to any other person who is thinking of representing themselves as widows or widowers with fake death certificates of their spouse, is to just divorce your first spouse legally. In California, it only takes approximately six months to conclude a valid, legal uncontested divorce. Then, you will be free to remarry. If you try to play tricks and games with the USCIS, you risk a lifetime of uncertainty, with the fear in the back of your mind that your first spouse or friends, relatives, etc., may later become mad or jealous and “report” you to the Immigration and Naturalization Service (INS) about your double marriages.

It is also a myth and misconception that a spouse is somehow “presumed dead” if a person lost contact with that spouse for over four years. You must go to court, have a court hearing, present evidence and testimony about efforts to track down or locate the supposed “missing spouse” for your spouse to be declared legally dead. The spouse’s relatives may be called, to verify that the spouse is truly missing. It is only after the conclusion of a court proceeding, and a “court order,” that a person may rely on that “presumption of death.” It is not “automatic.” You need a court order!
If your spouse is alive, my advice is to do it right, do it legal, and just divorce, instead of becoming a widow or widower, using a fake death certificate.

If you are being petitioned by a spouse on the basis of a bigamous marriage (because you did not bother to terminate your first marriage), then such cannot be approved since it is a bigamous marriage.

That is why if you have any questions or concerns about your case, and whether or not it is “approvable when filed,” you should seek the advice of a reputable attorney (and, of course, be truthful with that attorney concerning the facts of your case). You have to make sure your case was “approvable when filed.”