ForumTitleContentMemberSexCountryDate/Time
US Embassy and Consulate DiscussionConsulate wants something that is impossible

"PRESUMPTIVE DEATH" ANNULMENT COULD RESULT IN PRESUMPTIVE DENIAL OF VISA

By: Michael J. Gurfinkel, Esq. 

Dear Attorney Gurfinkel:

I was married several years ago, but my husband went to work abroad, and we really haven't communicated that much since then. 

I met and fell in love with an American citizen in the Philippines, and we want to get married. I know that I must get my first marriage annulled before I can marry my American boyfriend, and some of my friends are suggesting that I get an annulment based on "presumptive death" of my husband. Do you think it is a good idea to get a presumptive death annulment, and will I encounter problems at the U.S. Embassy once I marry my boyfriend and am petitioned for an immigrant visa?

Very truly yours,
AS 

Dear AS:

A presumptive death annulment is where one spouse effectively "disappears," and the spouse left behind does not have any contact nor has any idea of the whereabouts of that missing spouse for at least 4 years. That surviving spouse must go to court and obtain an annulment based on the presumption that the missing spouse is "dead." However, the U.S. Embassy is concerned or suspicious about presumptive death annulments, because in many cases, the spouse who obtained that annulment knows very well that the "dearly departed" spouse is very much alive. Therefore, the supposed legal basis for the annulment is untrue. In such a case, the presumptive death annulment was improperly obtained, and the U.S. Embassy may not give legal recognition to that annulment for purposes of issuing a U.S. visa based on a subsequent marriage to a different spouse. 

I had one case where a Filipina was "caught" by the U.S. Embassy with a bogus presumptive death annulment. Like you, she met a U.S. citizen, whom she wanted to marry. She then went to court and obtained an annulment based on the presumptive death of her first husband, whom she had supposedly not seen in several years.

The problem was, that with a court decree declaring the husband "dead," some relatives thought that this might entitle them to some form of inheritance. Other relatives, knowing that the first husband was very much alive, filed papers in court (including a currently dated, notarized affidavit by the "deceased," and pictures of him), challenging the presumptive death annulment.

The Embassy was somehow able to obtain information and documentation that the deceased first husband was alive. (They may have obtained records from the courthouse, the relatives who challenged the annulment may have written a letter to the Embassy, along with a copy of the affidavits, or the Embassy may have contacted relatives of the "deceased" spouse). Accordingly, the Embassy would not issue the visa to that Filipina based on her marriage to her second husband, because she was still married to the first husband, as he was still alive.

Therefore, if you truly know that your current spouse is alive, you should NOT obtain an annulment based on presumptive death, as the Embassy will investigate.

Instead, if you want to terminate your marriage, you should do so based on valid, proper, legal grounds, so that you will not run into problems if your intention is to marry another spouse (for love) and obtain U.S. immigration benefits through that second marriage. 

























BoilerMaleWales2014-01-26 21:46:00
US Embassy and Consulate DiscussionConsulate wants something that is impossible

Consulates do make mistakes, doubt they have in this case, I have certainly seen cases where a Lawyer submission has worked. Not very common.


BoilerMaleWales2014-01-26 21:38:00
US Embassy and Consulate DiscussionConsulate wants something that is impossible

Putting aside Consular Non reviewabilty, it is possible for a Lawyer acting on you behalf to submit a request for a review citing the relevant Statues Case Lawyetc.

 

Certainly something you could discuss with your legal team.

 

Might be worth getting a  Presumption of Death from the US Courts, just a thought.


BoilerMaleWales2014-01-26 20:56:00
US Embassy and Consulate DiscussionConsulate wants something that is impossible

Presumption of Death and Remarriage:

Many people ask us: I have not heard from my spouse in 7 years, can I remarry?
The answer is no. No matter how long spouses have been separated 2, 4, 7, 15 years or more, one can not remarry without the courts having issued a:
? Decree of Annulment or Nullity
? Judicial Decree of Absolute Divorce
? Death Certificate of the Deceased Spouse
Article 41 of The Family Code of the Philippines states:
A marriage contracted by any person during the 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 (4) consecutive years and the spouse present had 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 provision of Article 391 of the Civil Code, an absence of only two years shall be sufficient.





Danger of Death pertains to:
? A person who was on board a ship or airplane which has gone missing and who has not been heard of for 2 years
? A person in one or the other branch of the military who has taken part in war or other military operations, and has been missing for 2 years
? A person who has been abducted and there has been no news about them for 2 years
? Or other situations where there is a high chance that death may have occurred within a 2 year period. Presumption of Death should not be used as a work around to be to remarry, as the law provides that if an affidavit of reappearance is recorded, the presumption of death is automatically terminated. If the presumption of death is terminated; any remarriage is immediately voided.




BoilerMaleWales2014-01-26 15:47:00
US Embassy and Consulate DiscussionConsulate wants something that is impossible

 He's not sure of the other pages his fiancee needed to provide either so.......  /letting people do whatever floats their boat. 

True, but then they start going of about the Consulate how long evrery thing takes etc etc.


 

Dear Mike , this kind document your fiance has, was ok if her  lost husband was filipino or he was dead in Philippine.

and she wanted to marry with another Filipino man, in their country.

But remember her lost husband is US C and she is going to marry with another USC,then she should prove the dead by USA law.

For US embassy is very important to figure out he is dead or no.

Then you try to focus to solve this part of problem,

Try to  Prove he is dead. also give  his dead   document  to US embassy in Philippine. 

If i was you. I don't take a lawyer in thier country. That is a wasting a money  any way ........ ,  Just try to find his family or his dead doucment in USA.

If you found . that is OKAY 

If you didn't find ,Don't search more problem for your future.

 

The problem is that the chances are he is not dead, if he had been dead none of this would have been needed, they would just have obtained a copy of the Death Certificate.


BoilerMaleWales2014-01-26 14:59:00
US Embassy and Consulate DiscussionConsulate wants something that is impossible

3 pages this is the 45th reply, or he could have checked to see what was needed!


Oops 46th.


BoilerMaleWales2014-01-26 14:54:00
US Embassy and Consulate DiscussionConsulate wants something that is impossible

have you asked the embassy what you can produce instead of the death certificate?  Remember you may be dealing with the embassy in the Philippines but it is a United States Embassy.  So, I suggest YOU the US Citizen call the embassy and ask them what else you can provide vs the death certificate for someone who isn't actually dead, just presumed dead because he didn't answer any summons so that your fiance could get her annulment?

Pretty sure she did not get an annulment.


BoilerMaleWales2014-01-26 14:50:00
US Embassy and Consulate DiscussionConsulate wants something that is impossible
You need to file for a divorce here in the US or a Petition for Annulment in the Philippines based on Article 36 of the Philippine Family Code.

 

Google is your friend. Good idea to get it checked.


BoilerMaleWales2014-01-26 14:45:00
US Embassy and Consulate DiscussionConsulate wants something that is impossible
Lord Lucan is the obvious example that comes to my mind, yet again I do not know how it works in PI but in the UK a Death Certificate is issued.
BoilerMaleWales2014-01-26 13:03:00
US Embassy and Consulate DiscussionConsulate wants something that is impossible

Maybe he disappeared so she couldn't get a divorce smile.png   That's why the consulate is diligent in asking to  produce a death certificate or divorce in order to proceed.  

He could be dead, he could be living, probably the latter, probably living in the same State as the OP.

 

He could already have divorced her in the US of course playing the same game.


BoilerMaleWales2014-01-26 12:59:00
US Embassy and Consulate DiscussionConsulate wants something that is impossible

Sukie, the problem here is not whether or not he is dead. The problem is that according to family law there, she is free and able to marry because he is merely assumed dead by virtue of no contact for 4 years, no known whereabouts, and being absent and failing to respond to any and all of those court proceedings. It was all done in accordance with family law and legal and binding. The problem is that the consulate, for some reason, cannot see what's in front of her.

What have you done to find him?


BoilerMaleWales2014-01-26 12:33:00
US Embassy and Consulate DiscussionConsulate wants something that is impossible

I do not know how it works in the US but in the UK you could so a search pay a small fee and get a copy of the Death Certificate.

 

Seems you are in the same state as well, I would imagine it would be much much cheaper and a lot quicker than getting into an argument with the Consulate.


Edited by Boiler, 26 January 2014 - 10:30 AM.

BoilerMaleWales2014-01-26 10:30:00
US Embassy and Consulate DiscussionConsulate wants something that is impossible

Where was he when she last had contact with him?


BoilerMaleWales2014-01-26 00:56:00
US Embassy and Consulate DiscussionConsulate wants something that is impossible

I do not remember seeing another presumptive death since I have been here.

 

Where was he when she last had contact with him.


BoilerMaleWales2014-01-25 21:46:00
US Embassy and Consulate DiscussionRio Consulate said *I* need to be at interview!

With the coverage of the World Cup and the 'issues' hardly surprising many want out.


BoilerMaleWales2014-02-24 15:58:00
US Embassy and Consulate DiscussionRio Consulate said *I* need to be at interview!

Unusual but not unheard of.

 

She should have the documentation, did she do it herself or employ a Lawyer?

 

The first trip, when, how long and on what visa type.

 

 


Edited by Boiler, 21 February 2014 - 11:27 PM.

BoilerMaleWales2014-02-21 23:26:00
US Embassy and Consulate DiscussionCalling Everyone Going Through Islamabad Embassy, version 3.0

Everybody goes through AP, most do not notice it, 4 weeks for Pakistan would be very unusual.


BoilerMaleWales2014-02-20 16:00:00
US Embassy and Consulate DiscussionDocuments to bring to my K3 interview -- HELP!

K3's are very unusual. Is there a particular reason you are going that way?


BoilerMaleWales2014-04-28 15:10:00
US Embassy and Consulate Discussionadministrative processing in Islamabad

I always wonder why they give any time line when it is an unknown.


BoilerMaleWales2014-05-10 20:48:00
US Embassy and Consulate Discussionapproved I601A Waiver- experience totally different than we expected

Consultants are generally best avoided, too many horror stories. Glad you were lucky.

 

What was it that you found so different to what you were expecting?

 

Not really my interest but I have noticed many first hand accounts on both this site and others.


BoilerMaleWales2014-08-07 12:43:00
US Embassy and Consulate DiscussionK1 Interview & 212(h) Waiver: How much authority does the CO have to approve/deny Visa?

OP said that she worked at a strip club.

 

I thought you had to quit the game for a certain time before being eligible? Does not come up very often.


BoilerMaleWales2014-08-15 22:50:00
US Embassy and Consulate DiscussionI-134 Affidavit of Support - Assets only
I did, I assumed they would use that calculation, they did not. Much lower.

Up to the individual Consulate, check with yours.
BoilerMaleWales2010-11-27 23:41:00
US Citizenship General DiscussionBrit seeking immigration advice
http://britishexpats...ork-in-the-usa/

You can also try posting in the immigration of visa forum.

To put it bleakly your chances outside of the Educational environment are slim to nil, especially with such a specialism.

Many years ago when I had a trainee under my wings who had a Ist from Cambridge in Archaeology, trouble is there are many more graduates than paid positions. Very few can obtain paid employment in ther specialism.

If you can afford it your best bet I would expect would be to continue your education at a US Uni and then try for a year OPT with hopefully a full time job deriving from it.

Does your Uni have any tie ins with US Uni's that you could leverage?

Edited by Boiler, 19 February 2006 - 06:29 PM.

BoilerMaleWales2006-02-19 18:28:00
US Citizenship General DiscussionUS Citizenship and Taxes
Life Insurance is a solution.
BoilerMaleWales2006-02-21 00:40:00
US Citizenship General DiscussionUS Citizenship and Taxes
Not wishing to be mean, but all of this has been mentioned many times before. Perhaps we need a sticky.
BoilerMaleWales2006-02-10 19:05:00
US Citizenship General DiscussionLPR wants to get married outside the US...

oh my goodness.. I'm surprised you could read it with all the mistakes I made.. sorry, I was rushing!
:)


A few typos beats misleading info anyday.

PS Nice dog.
BoilerMaleWales2006-03-05 00:29:00
US Citizenship General DiscussionDual citizenship - Moroccan & American

I have dual citizenship with the UK and USA. It has been suggested that I always use my US passport when entering other countries, including the UK, and that is what I generally do. I know other naturalized US citizens, however, who use their British passports when entering the UK.

It seems to me that, if checks were performed, it is possible that a US border patrol agent could take issue if your husband did not have a Morroccan entry stamp in his US passport and this could have ramifications for his US citizenship. But this is pure speculation on my part. Do US citizens require a visa to enter Morrocco?

G


You use your UK passport when entering the UK.
BoilerMaleWales2006-02-27 14:20:00
US Citizenship General DiscussionSibling question



If the petition is for her only then I a pretty sure she cannot bring husband and children. you would have to apply seperatly for them. Maybe someone else knows more but I am almost certain that is the way it should be done.



Yeah.. I believe only the sister could come... Once she has citizenship, she could apply for her husband and children as immediate relatives...


I don't think this is true. The sister's spouse and her children may accompany her on the visa. At least this is what I understand from this statement.

"Please note that you do not need to file separate visa petitions for your brother’s or sister’s spouse or his/her unmarried children under 21 years of age. They may accompany or follow to join your brother and sister. This includes adopted children who fit the definition of adopted child in the immigration law (101(B)(1)(E) but not"

http://uscis.gov/gra...wdoi/sibapp.htm


Correct
BoilerMaleWales2006-03-13 13:58:00
US Citizenship General Discussiondual citizenship confusion!

I'm quite certain that Canadian officials would not accept a notice of renunciation for an underage child that was submitted by anyone other than that child's parents or legal guardians! I am also quite certain that the child's renunciation would have to be included with the parent's renunciation! What a crock of horseshit!

Seriously, I would report this person to their supervisors for being such an idiot. Write a letter of complaint and tell them of the pain and stress this person's erroneous comments have caused you and your family. Honestly! Who trains these people? sheesh!


They are call centre staff on probably $10 an hour - give them a chance. My only surprise is that it was not put through to India.

Asking, and expecting, proper legal advice is asking a bit.
BoilerMaleWales2006-03-24 11:58:00
US Citizenship General DiscussionCitizenship Eligibility


Has ben mentiond in passing, but his first step would be to see if he can get back into the US as a LPR.

Everything else rather hangs on this, and there is no mention of how he has sought to retain his US residency.




what do u mean?? how could my husband lose his US residency when he didnt stay here in Phil for 1 yr.

hubby has his flight skeduled already..

what seems to be the problem?????????????

he is pretty sure though that he could come back...


You can lose residency in a day, theoretically, there is no magic timeline:

Maintaining Permanent Residence

Maintaining Permanent Residence You may lose your permanent residence status if you commit an act that makes you removable from the United States under the law in section 237 of the Immigration and Nationality Act. If you commit such an act, you may be brought before the immigration courts to determine your right to remain a Permanent Resident.

You may be found to have abandoned your permanent resident status if you:

* Move to another country intending to live there permanently.
* Remain outside of the US for more than one year without obtaining a reentry permit or returning resident visa. However in determining whether your status has been abandoned any length of absence from the US may be considered, even if it is less than one year.
* Remain outside of the US for more than two years after issuance of a reentry permit without obtaining a returning resident visa. However in determining whether your status has been abandoned any length of absence from the US may be considered, even if it is less than one year.
* Fail to file income tax returns while living outside of the US for any period.
* Declare yourself a “nonimmigrant” on your tax returns.
BoilerMaleWales2006-03-27 23:44:00
US Citizenship General DiscussionCitizenship Eligibility
Has ben mentiond in passing, but his first step would be to see if he can get back into the US as a LPR.

Everything else rather hangs on this, and there is no mention of how he has sought to retain his US residency.
BoilerMaleWales2006-03-27 15:54:00
US Citizenship General Discussionhelp
She will needa Visitors Visa, or use the VWP.

Just like anybody else, well anybody who is not a USC.
BoilerMaleWales2006-04-01 09:44:00
US Citizenship General DiscussionApply or Dont Apply?

My family and I have been lawful residencees of the US since 1985. Every member of my immediate family is a US Citizen except me. I went to grade, middle and high school here. Until one day I decided to go to college in the Philippines. I managed to graduate in 2004. I understand that the immigration only considers your continuous residence for the pass 5 years. Basically, it would mean 2001 from our present year. Every summer while I studying in the Philippines I travel back to work full time in the US. I did this for 3 consecutive years. I am now in the US for good working as a flight attendant that does US military charter flights. I am havin issues travelling all over the world since my passport is of my nationality. At times I would get by by showing my crew badge but nonetheless its such a hassle. I am considering filing for Naturalization this year (2006). In addition, my job requires me to be out of the US for 15-20 days a month travelling for the Department of Defense. Considering the sum total of my physical presence is greater than the time Ive been away from the country plus my job duties every month. should I consider applying for Naturalization?

Although I have broken my continuous residency, I have some factors in mind:( based from my research to prove my unintention to abandon my permanent residency)
1. I can prove my ties while I was away from the US as my parents filed my income tax returns every year since I started working at 16.
2. I can prove my job description as my company has provided a letter regarding the type of contracts we do for the military and the reason why I am away from the country every month.
3. I have documents from the college I attended.
4. I have been a resident of my parents' household ever since in which they have previous bills, mortgage and bank statements under their name to support this.
5. I have bank statements and credit card bills since I was 16.
6. I have registered for the civil service at 19 (2002) which also proves I had no reason to abandon my residency.

Setbacks:
1. In the last 5 years I have been away for a sum total of 27 months however I have been in the country for about 35 months till today.


I am even not considering writing down my trips (school) to the Philippines since the space provided for in the application will fill up from my travel based on my work schedule. And if they ask me, thats when I'll mention it.

Yes. OR No?


Tell the truth, if the space is inadequate attach details.

Residence and Physical Presence

An applicant is eligible to file if, immediately preceding the filing of the application, he or she:

* has been lawfully admitted for permanent residence
* has resided continuously as a lawful permanent resident in the U.S. for at least 5 years prior to filing with no single absence from the United States of more than one year;
* has been physically present in the United States for at least 30 months out of the previous five years (absences of more than six months but less than one year shall disrupt the applicant's continuity of residence unless the applicant can establish that he or she did not abandon his or her residence during such period)
* has resided within a state or district for at least three months
BoilerMaleWales2006-04-02 00:57:00
US Citizenship General Discussionchildren born in U.S.
Best bet is the amnesty.

Despite popular belief there is no such thing as anchor babies.

I have read several accounts of ICE raiding factories and deporting the illegals. With children wondering where the parents are to pick them up.

Of course no USC can be deported, with young children you would have thought however that the parents would take them with them.

Amnesty excepted even if she married a USC and got away with it, she still would need to return to Columbia for a K3/CR1 interview, be denied, and for her 'husband' to file a waiver for her overstay.
BoilerMaleWales2006-04-03 21:53:00
US Citizenship General DiscussionAfter 4 yrs, is it possible?


This was what I heard about yesterday. It sure raised my level of curiosity!

Legal immigrants fluent in English could become US citizens in 4 years rather than the current 5 years.


This proposal by Senator Lamar Alexander was agreed to by the US Senate April 3. The Senate passed the proposed bill 91 votes in favour to one vote against.


According to the Homeland Security Department and Immigration Service an estimated 7.2 million legal permanent residence have lived long enough in the US to qualify for citizenship.


Included in the bill was another proposal. If a permanent resident marries a US citizen the waiting period for citizenship has also been reduced from 5 years to 3 years.


The senator now hopes that a shorter naturalisation period will motivate more green card holders becoming citizens of the US.


Along with the current debate concerning illegal immigration in the senate, we needed to address the indispensable step of helping prospective citizens becoming Americans, said Alexander.


The legislation that was passed by the senate will provide US$500 in vouchers to immigrants to pay for English courses. Grants will be issued to groups that provide classes in US history and civics.


Homeland Department and Immigration Service officials feel legal immigrants need to be encouraged to seek citizenship, as many do not speak good English and can not afford the fee.


The bill now needs to be passed by US Congress later this month for it to become official US legislature.


SEE OTHER POST ALSO RE SHORTENED TIME FOR CITIZENSHIP IN THIS FORUM BY SRINIV


WOW! thankyou for that information! It surely made me feel better. was it approved already? or not yet???

thankyou!



5,000 bucks....

From my personal experiance most Americans have problems with the English language, pronounciation and spelling particularly. OK, my spelling is not that hot either.

Anybody see the Daily Show the other night when Ricky Gervais was on:

http://www.comedycen...ews/index.jhtml

Well worth watching.
BoilerMaleWales2006-04-07 11:37:00
US Citizenship General Discussion2 Year naturalization?

I have a quick question for everyone. My husband recently received his green card and at our interview he was told that he would be eligible to apply for citizenship in 2 years. Since then I've been hearing people say that this isn't true. Does anyone know anything definitive on this? Thanks a lot!


3 years
BoilerMaleWales2006-04-10 19:34:00
US Citizenship General DiscussionCitizenship vs. Permanent Resident



One of the advantages to becoming a U.S. citizen (rather than staying a PR) that I have read about is that there are benefits in the event of your US spouses death. I think they have something to do with the inheritance, taxes, etc.

I think I read that in the USCIS website in the Citizenship section.


Yes, I've heard that too. Does anybody know what specifically those benefits are?


Anybody know where to find this information? I've been looking on the USCIS and the IRS website and can't find anything about it. Is it something to do with social security benefits, or spouse's estate or what? Other than here on VJ, I've not heard or seen anything about this.


It will be on the IRS site, basically there are certain exceptions but they only in this case apply to the spouse if a USC.
BoilerMaleWales2006-04-12 19:27:00
US Citizenship General DiscussionCitizenship vs. Permanent Resident

I believe that relates to serving in a foreign army that is an enemy of the US. Obviously France, Greece and Israel are allies of the USA.


France is not, not sure about Greece.
BoilerMaleWales2006-03-12 01:27:00
US Citizenship General DiscussionCitizenship vs. Permanent Resident


That's a bit harsh (man, that should be my VJ tagline), don't you think? People make the decision to take U.S. citizenship for a variety of equally valid reasons, and I certainly think that it's quite possible and proper to retain more than one valid citizenship. Plenty of other countries also allow for such possibilities, and it pleases me that we've moved past a time in history when situations like the ones in which many, many VJers find themselves are recognized with compassion and sensibility.

The dual citizenship FAQs to which Meauxna has often referred spell out the responsibilities of dual citizens, which are really no different from the responsibilities of persons who are only American citizens. Anyone taking American citizenship, whether to replace one citizenship or to add to another, is aware of these responsibilities.


I think you misunderstand my point and I may have not stated it correctly. I don't have any problem with dual citizenships at all. My point was about what accepting U.S. citizenship should be about whether or not you maintain more than one citizenship. I think you can have allegiance to more than one country, but if you don't really mean the things in the oath of citizenship, then don't take it. I think there is a place for those who want to live here without being a citizen--I wasn't judging them harshly, I actually said I think it's an honorable choice. If they value their integrity enough to not take an oath that they really don't accept, I applaud them. I consider the comments that they should leave the country if they don't want to be a citizen to be the truly harsh comments. I welcome the idea that they can live here and not become a citizen if that's not what's in their heart.



I had no desire to obtain US Citizenship, but the negatives that are imposed on LPR's made me re-consider.

You have to make your own choices based on your own circumstances, but I guess for most the Oath of Allegiance is just a small and relatively insignificant and inconsequential part of the process.

If you see it otherwise, fine, that is your choice.

If the oath was the only difference between being a LPR and a USC, then I would probably agree with.you But it is not.
BoilerMaleWales2006-03-02 15:45:00
US Citizenship General DiscussionCitizenship vs. Permanent Resident
You are a CPR until your PR status is granted, with processing times that could well still be pending when you apply for Naturalisation, 90 days befor the 3 year anniversary of the GC issuance.
BoilerMaleWales2006-02-22 13:47:00