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US Immigration Articles




Coming to America

Marital Record : Common obstacle in bringing your Filipino Fiancée to  United States.

By: Alexander Llanes Acain, Jr. Esq.

The general rule is that K1 applications are subject to the same review standards as immigrant visa applications. According to the U.S. Embassy in Manila, the main reasons for visa refusal are: lacking documentation; need to review or verify evidence; lack of petitionable relationship; misrepresentation of facts, medical and criminal grounds and potential public charge.

But common basis for refusal is a prior marriage of the Filipino beneficiary that has not been legally terminated. When confronted with this legal dilemma, the usual advice of U.S. immigration lawyers is that your Filipino beneficiary should secure a decree of annulment in the Philippine Courts. This may be the best legal remedy but unlike in the United States where divorce is recognized and the processing time for the divorce proceeding is relatively shorter, it would be a lengthy process to obtain a decree of Annulment in Philippine Courts. Besides, there is no guarantee that the Petition will be granted.

But there is a less explored legal remedy which is also acceptable by consular officers of the U.S. Embassy. This is the Petition for Presumptive Death of the Filipino Spouse. Since there is no divorce in the Philippines, a consular officer will only accept a death certificate or a court ruling of annulment or of presumptive death as evidence that a Filipino marriage has been terminated.

Art. 41. of the Family Code says that “A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. Simply put, your fiancée may also validly remarry provided that she has obtained a declaration or Order of Presumptive Death of her spouse from the Court.

The Petition may prosper if the absent spouse has not been heard of or his whereabouts unknown for a period of four consecutive years and that the petitioning spouse has a well-founded belief that he was already dead. Absence of two years is already sufficient if the absent spouse was missing due to airplane crash, a vessel lost during a sea voyage, missing in action in case of members of the armed forces or the absent spouse disappeared while in danger of death.

Now, for purposes of contracting the subsequent marriage, the spouse present must institute a summary proceeding in Court for the declaration of presumptive death of the absentee. But this is without prejudice to the effect of reappearance of the absent spouse. You can take advantage of this remedy especially when you are racing against time because the processing time is relatively shorter than annulment proceedings and the success rate is high compared to Annulment Petitions.

Next time you face a legal obstacle in bringing your Filipino Fiancée to the United States, you already have other remedies to consider.


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