Divorcing for a green card: U.S.-based Pinoys’ legal dilemma

"Here's my situation, Attorney," explained Hajji Valenciano, a fictional client of mine from Manila. "I haven't been to the Philippines since Noynoy Aquino was president, and I haven't talked to my wife in a long time. In fact, we were already living apart even before I left for the US."

"Well, in that case, yes, we can file a no-fault divorce case here in the US based on a one-year separation," I said.

"Thanks, Attorney. I needed that coz' I've got a girlfriend who is a US citizen, and we want to get married as soon as possible. You see, my tourist visa's long expired, and my girlfriend's willing to petition me for a green card."

I nodded in agreement but cautioned him against entering into a sham marriage. He assured me their relationship was genuine and everything was above board.

He then dropped a bombshell question.

"But if I marry my girlfriend after divorcing my wife, isn't it, uh, considered bigamy under Philippine law? Someone's told me that divorce between Filipino citizens is not recognized in the Philippines, even if valid abroad."

I paused a bit and composed my thoughts before crafting a logical response. "Uh, technically, you're right. Legally speaking, divorce is not recognized in the Philippines, except when the Family Code allows a Filipino citizen to remarry after being divorced by a foreign spouse. But because you and your wife are both Filipinos, the divorce will not be valid under Philippine law. However, it doesn't mean they won't recognize the divorce for practical reasons."

I went on and explained to him what had happened to a client of mine recently.

The following is a true story.

Imelda (not her real name) was a "TNT" Filipina living in the US who divorced her Manila-based Pinoy husband a few years ago. She then married my other client, Basil (not his real name), a divorced, naturalized US citizen from the Philippines. After they got married, Basil petitioned Imelda for a green card. However, due to a technicality, Imelda was not allowed to obtain a green card in the US and had to apply for an immigrant visa at the US Embassy in Manila.

After I helped her obtain an advance waiver from the United States Citizenship and Immigration Services, Imelda traveled to Manila for her visa interview and was eventually issued an immigrant visa. Before flying back to the US, however, she had to undergo a guidance counseling program or GCP required by the Philippine government through the Commission on Filipinos Overseas.

Among the list of required documents were prior marriage certificates and divorce/annulment decrees.

Despite her "divorce" and "bigamy" issues, Imelda passed the counseling program without questions and was issued a GCP certificate — which means the Philippine government "recognized" not only the divorce decree against her (former) Pinoy husband but her subsequent ('bigamous') marriage to Basil as well.

This also means she was never in serious jeopardy of being prosecuted for bigamy. Otherwise, the CFO would have reported her to the authorities or, at the very least, withheld the approval of her GCP certificate. Plus, any potential bigamy charge would become irrelevant (on jurisdictional grounds) once she becomes a US citizen (after three years).

In sum, and while not truly determinative as a legal precedent, Imelda's case at least offers a glimpse of the real-world functionality, if not effectuality, of our kababayans' practice of divorcing their Filipino spouses (in good faith) to marry a US citizen — for a faster route to green card and eventual US citizenship.

As for Hajji Valenciano, the guy blasted out a shout for joy after hearing my story, thankful that his reaching out to me had the effect of being taken out of the dark by the Lord Almighty.

End of the story.