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I-130 denied now doing K1

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I put in a I-130 in 2000 I didnt know what I was doing she knew less and her family pressed us to marry, I found out later she had been married before after I filed the I-130 and how they dont do divorce in PH. so we got a presumptive death annulment (philippines) it happened in 2001 and we got married in 2000 in philippines so I got confused and frustrated at all this and I ended up living there for 2years but got tired and decided I didnt want to live there so I came back to US continued to work on the I-130 in 2003 confused and continued going back and forth from PH and US, hoping they would except it but of course it was denied in 07 at the consular after everything because we were married in 2000 and the presumtive death happened in 2001.

She has a daughter from the first husband, and we have a son(american citizen already). I went through the annulment process for our marriage in the philippines that took place in 2000 and now it is annuled in 2009 that took almost a year to do, and 2 lawyers since the first was giving me the runaround.

Do I also need to get a divorce from her in US still? someone told me to do this, but since I was never married here I dont think its possible?

Is presumtive death accepted fo K1? A agency in philippines told me that this was frowned upon, and that we should try to track down her former husband and get another annulment(AHHH!) maybe they just want to make more money out of me also could take 2years! Anyway Im hoping to do a K1 so her daughter will get k2.

Will I have any problem with her daughter getting a K2, because of the first husband? she is working on changing her daughters last name to her maiden will this help?

On the I-129f it asks marital status question 6 married,single,widowed, or divorced? Is it single because it was annulment in philippines I've never been married in US? or should it be divorced? and for her what should it be?

sorry such a mess I am so confused with this K1 I dont want it to get denied and I dont know where to go for help, hope you all can help with ur experiences Thankyou!

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Back reading on the laws about Presumptive Death in the Philippines.

Art. 41. 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.

For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.

In other words, an absence of 4 years, it being unknown whether the other spouse is still alive and the present spouse has a well-founded belief that the missing spouse is already dead, is a ground to ask the court for a declaration of presumptive death (this is a summary proceeding, not a special proceeding). The 4-year period, however, is reduced to 2 years in the following circumstances:

1. A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for [two] years since the loss of the vessel or aeroplane.

2. A person in the armed forces who has taken part in a war, and has been missing for [two] years.

3. A person who has been in danger of death under other circumstances and his existence has not been known for [two] years.

There are 4 requisites for the declaration of presumptive death under Article 41 of the Family Code:

1. That the absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391, Civil Code.

2. That the present spouse wishes to remarry.

3. That the present spouse has a well-founded belief that the absentee is dead.

4. That the present spouse files a summary proceeding for the declaration of presumptive death of the absentee.

Base on your story...

2000 - You got married to your wife (currently fiance due to nullity of marriage); Filed for I-130

2001 - She got a declaration of presumptive death on her first spouse

2003 - Went back to US; I-130 still pending.

2007 - Denied I-130

2009 - Have your marriage with your wife (currently fiance) judicially declared null & void due to her subsisting marriage at the time you contracted marriage with her; now you want to file k1.

First of all, yes... you are correct... you got denied because your marriage done on 2000 is null and void. SHE had a subsisting marriage at the time (still legally married to her former husband) therefore in the eyes of the law at that time, she cannot contract another marriage. (Be glad nobody filed bigamy on her).

Second, since she already have a Declaration of Presumptive Death on 2001, her previous marriage (to her first husband) is already terminated. She can now remarry. I believe her status is widowed, presumptive death means.. the former husband died.

Third, since you already have your marriage to her judicially declared null and void, you are able and free to marry. Therefore, no need to get a divorce in the US. If asked, just present your declaration of null and void marriage and her judicial declaration of presumptive death on her previous husband. (Make a timeline... same as what I did for you above, but put more details on it).

Fourth, the declaration of presumptive death may be frowned upon but so long as you have legal documents (final declaration from the court) and have this recorded in NSO, then there is no need to file annulment. The lawyers maybe trying to milk money from you or whatever. Always seek second opinion.

Fifth, again since the first marriage is already disolved. She doesn't need to change her daughter's last name. Just show the consul the declaration of presumtive death. That will mean, the bio-father is dead already.

Final advice is just to make sure you have all the proper documentations of your judicial declaration of nullity of marriage, the presumptive death and etc. Go to NSO and ask them how to have all these recorded so that when they print out your CeNoMar and her CeNoMar it will show up that both of you are legally able and free to remarry.

Hers will show up as widowed (i think), yours will show up as single.

Good luck to you and your fiance. I hope you will be able to sort this mess out and finally bring them home to US with you.

If you need help, send me or my husband a PM, If you need a lawyer... I can refer one to you (no fee for me) just helping out fellow kababayan. I'm an ex-law student and I have a few professors of good reputation who works in law firms. They may be able to help you better.

-TNGIRL wife (using TNGUY's account)

Edited by tnguy21809
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Filed: AOS (apr) Country: Jamaica
Timeline

TNGirl, that's awesome that you found such valid info for the OP.

In the original post, did you state that divorce isn't allowed in the Philippines? If so, what do people do who no longer want to be married? Perhaps I need to take that question to the regional forum; I'm quite curious.

Also TNgirl, happy birthday to your husband.

November 19, 2007 - Met

November 25, 2008 - Engaged

November 25, 2009 - Married

November 24, 2011 - Baby due!

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Filed: K-1 Visa Country: Canada
Timeline
TNGirl, that's awesome that you found such valid info for the OP.

In the original post, did you state that divorce isn't allowed in the Philippines? If so, what do people do who no longer want to be married? Perhaps I need to take that question to the regional forum; I'm quite curious.

Also TNgirl, happy birthday to your husband.

I was telling this to my Fiance and we agreed that if death is the only clause out of marriage than that sounds like an 'accident' waiting to happen. :unsure:

K-1

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07/17/2009 - NOA2

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10/09/2009 - Married

AOS/EAD

11/18/2009 - NOA1

01/15/2010 - EAD Approved

02/25/2010 - AOS Interview

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Disclaimer : 100% of the time I only think I know what I'm talking about.

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Filed: Citizen (apr) Country: Ukraine
Timeline
I put in a I-130 in 2000 I didnt know what I was doing she knew less and her family pressed us to marry, I found out later she had been married before after I filed the I-130 and how they dont do divorce in PH. so we got a presumptive death annulment (philippines) it happened in 2001 and we got married in 2000 in philippines so I got confused and frustrated at all this and I ended up living there for 2years but got tired and decided I didnt want to live there so I came back to US continued to work on the I-130 in 2003 confused and continued going back and forth from PH and US, hoping they would except it but of course it was denied in 07 at the consular after everything because we were married in 2000 and the presumtive death happened in 2001.

She has a daughter from the first husband, and we have a son(american citizen already). I went through the annulment process for our marriage in the philippines that took place in 2000 and now it is annuled in 2009 that took almost a year to do, and 2 lawyers since the first was giving me the runaround.

Do I also need to get a divorce from her in US still? someone told me to do this, but since I was never married here I dont think its possible?

Is presumtive death accepted fo K1? A agency in philippines told me that this was frowned upon, and that we should try to track down her former husband and get another annulment(AHHH!) maybe they just want to make more money out of me also could take 2years! Anyway Im hoping to do a K1 so her daughter will get k2.

Will I have any problem with her daughter getting a K2, because of the first husband? she is working on changing her daughters last name to her maiden will this help?

On the I-129f it asks marital status question 6 married,single,widowed, or divorced? Is it single because it was annulment in philippines I've never been married in US? or should it be divorced? and for her what should it be?

sorry such a mess I am so confused with this K1 I dont want it to get denied and I dont know where to go for help, hope you all can help with ur experiences Thankyou!

So your amrriage was annulled in the PI. Good. Yes, you can file for a K-1

On an I-129f, need to list all former spouses and you WERE married so she has to be listed as a spouse/former spouse and you have to document how that marriage ended (along with her previous marriages). Attach your annullment papers. And her annullment papers from her previous marriage. You may also attach a brief explanation of this incident.

Her daughter will have to have the permission of the father to permanently relocate to the USA unless he is deceased and you can show this with a death certificate. An anullment on "presumptive death" will not work unless there is some official "presumed dead" certificate issued by the government. It is possible that she could get a court order of sole custody also. Changing his name will not matter. If the father is on the birth certificate you will need his permission or one of the other two items.

I would suggest an attorney in the PI that deals with family law who could probably handle all of this.

VERMONT! I Reject Your Reality...and Substitute My Own!

Gary And Alla

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TNGirl, that's awesome that you found such valid info for the OP.

In the original post, did you state that divorce isn't allowed in the Philippines? If so, what do people do who no longer want to be married? Perhaps I need to take that question to the regional forum; I'm quite curious.

Also TNgirl, happy birthday to your husband.

Divorce is not allowed in the Philippines.

However, if a Filipino is married to a foreigner and the foreign spouse obtained divorce in a foreign court, the divorce will be honored in the Philippines by reason of equity.

They figured it is unfair for the Filipino spouse if the foreign spouse obtained divorce and can remarry and the other party cannot.

There is annulment and legal separation here. Annulment = both parties can remarry. Legal Separation = Both parties cannot remarry.

There is a strict requisites for all these dissolution of marriage though.

Thank you! I'll tell him you said Happy Birthday.

TNGirl, that's awesome that you found such valid info for the OP.

In the original post, did you state that divorce isn't allowed in the Philippines? If so, what do people do who no longer want to be married? Perhaps I need to take that question to the regional forum; I'm quite curious.

Also TNgirl, happy birthday to your husband.

I was telling this to my Fiance and we agreed that if death is the only clause out of marriage than that sounds like an 'accident' waiting to happen. :unsure:

Nah, usually both parties just separate ways. If you have money, file for annulment. If you don't have money, just live separate lives but they cannot marry anybody anymore. This whole previously married issue causes trouble only if (1) The other spouse has more money. (2) The other spouse wants to get married with a foreigner and live abroad ... I say usually.. there are other cases too.. but these are the two common causes why people file annulment. Otherwise, couples just separate and never see each other again. :yes:

-TNGIRL.

Edited by tnguy21809
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TNGirl, that's awesome that you found such valid info for the OP.

In the original post, did you state that divorce isn't allowed in the Philippines? If so, what do people do who no longer want to be married? Perhaps I need to take that question to the regional forum; I'm quite curious.

Also TNgirl, happy birthday to your husband.

I was telling this to my Fiance and we agreed that if death is the only clause out of marriage than that sounds like an 'accident' waiting to happen. :unsure:

:rofl:

Yeah there is no divorce in RP, but I read somewhere on net that you may be able to go to Hong Kong and get one (not sure if this is true).

there is also legal seperation, but that wont get u a visa.

presumtive death is probably the easy way takes about 1yr and is valid until the ex makes a appearence(the problem) if he/shes still alive probably a court thing, and in my case there is a record in the nso that the agency pulled of him getting remarried in 1994 so he would be in big trouble if he tried to show up.

another kind of annulment is to prove that he/she was psychologically incapacited at the time of marriage, takes up to 2years and is what this travel agency wanted me to do for her first marriage, while waiting for the I-129f to be processed just to be on the safe side in case they dont like the presumptive death, but Im wondering that if we do this after sending in the I-129f that it may be denied because of misrepresention of facts??

family code:

A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. (As amended by Executive Order 227)

also I think the marriage is valid only if it is entered in the NSO records so if you dont file it at NSO I guess it never happened.

I need to do the timeline that is a great Idea I still know so little about all this, It seems you almost have to go to law school to figure it all out :( . Good Luck to all of you who take on the visa journey, for it isnt as easy as most Americans think for foreigners to come to USA. Its good to have people here that know so much and can help, wish I found this forum years ago. thankyou so much TNGIRL!! for such a quick responce and HAppy Bday to TNGUY!!

anyone go to US on K1 I-129f with Presumptive Death?

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TNGirl, that's awesome that you found such valid info for the OP.

In the original post, did you state that divorce isn't allowed in the Philippines? If so, what do people do who no longer want to be married? Perhaps I need to take that question to the regional forum; I'm quite curious.

Also TNgirl, happy birthday to your husband.

I was telling this to my Fiance and we agreed that if death is the only clause out of marriage than that sounds like an 'accident' waiting to happen. :unsure:

:rofl:

Yeah there is no divorce in RP, but I read somewhere on net that you may be able to go to Hong Kong and get one (not sure if this is true).

there is also legal seperation, but that wont get u a visa.

presumtive death is probably the easy way takes about 1yr and is valid until the ex makes a appearence(the problem) if he/shes still alive probably a court thing, and in my case there is a record in the nso that the agency pulled of him getting remarried in 1994 so he would be in big trouble if he tried to show up.

another kind of annulment is to prove that he/she was psychologically incapacited at the time of marriage, takes up to 2years and is what this travel agency wanted me to do for her first marriage, while waiting for the I-129f to be processed just to be on the safe side in case they dont like the presumptive death, but Im wondering that if we do this after sending in the I-129f that it may be denied because of misrepresention of facts??

family code:

A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. (As amended by Executive Order 227)

also I think the marriage is valid only if it is entered in the NSO records so if you dont file it at NSO I guess it never happened.

I need to do the timeline that is a great Idea I still know so little about all this, It seems you almost have to go to law school to figure it all out :( . Good Luck to all of you who take on the visa journey, for it isnt as easy as most Americans think for foreigners to come to USA. Its good to have people here that know so much and can help, wish I found this forum years ago. thankyou so much TNGIRL!! for such a quick responce and HAppy Bday to TNGUY!!

anyone go to US on K1 I-129f with Presumptive Death?

You are welcome. As far as I know, present all evidence to prove that you are both free to marry and you shouldn't have any problems. Timelines are great too, if you want to front load your petition with the USCIS.

However, if you want... since you are both legally free to marry now, marry in the Philippines via the Regional Trial Court judges and do the CR1 instead.

I got married in the courthouse just to be extra safe with all these validity of marriage issues. They are right about the same amount of time, maybe 1 or 2 months behind the k1. Plus, it might show that both of you did not willfully misrepresent yourself with your last petition, and it was just an honest mistake about her capacity to contract marriage.

And about the lawyers, yep... basically, you pretty much have to find a lawyer or get a law degree to understand all these things. I tell you, even if you read the entire law book about the Family Code, there are still some things that will leave you baffled and scratching your head. That's why lawyers charge a lot when they get a case. They know that even if a person can read and write, the legal terms alone that is mixed up in the letter of the law will leave the ordinary person scratching their heads.

It was actually my husband who kept track of your post and asked me to put my two cents in. Well, good luck to you and your fiance and your family... I'm sure somewhere in this twisted situation that you both are in is a straight solution to keep your family intact. Keep the faith. Things will turn out good sooner or later.

-TNGIRL

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Back reading on the laws about Presumptive Death in the Philippines.

Art. 41. 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.

For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.

Just a word of caution though, the second marriage is easily voided by the appearance of the absentee spouse. Art. 42 of the Family Code also provides:

"The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of appearance of the absent spouse, unless there is a judgment anulling the previous marriage or declaring it void ab initio."

The US Embassy is also increasingly suspicious of presumptive death cases in the Philippines. If OP is sure that the ex-husband is really dead, they'll be fine. If not, their lawyer's advice to get an annulment is reasonable.

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