Ara Mina on sister Cristine’s...

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Pinay and half-afam, you stand out… just like Pia Wurtzbach and Catriona Gray.

N: I’m sick of generalizations about afams like me. It’s a case-by-case basis. There are afams who are scammers, but not all of us are like that. My girlfriend is Pinay, and we’re in a good place.

L: My takeaway from our film is to be proud of our race and not to be intimidated by foreigners, even if they come from first-world countries. g

DEAR Attorney Tan, I recently married a US Citizen, who is my second husband. He has filed an immigrant visa petition and green card application for me. My husband recently received from USCIS a Notice of Intent to Deny the petition that he filed on my behalf. The Notice indicated that the immigrant visa petition could not be approved since the USCIS had determined that I previously entered into a fraudulent marriage to get a green card several years ago. My exhusband previously filed an immigrant petition on my behalf several years ago, which was denied since USCIS determined that I only married him to get a green card. My second husband and I truly love each other. What are my options? -- In Love but Out of Status

Dear In Love but Out of Status, Under INA Section 204(c), a person who “attempted or conspired to enter into a marriage” in order to receive permanent resident status in the US is prohibited from obtaining USCIS approval of an immigrant visa petition. Simply stated, Section 204(c) prohibits approval of any immigrant visa petition if there has been a finding of “marriage fraud” in a prior marriage-based petition.

Based on the above law, your case seems at first glance like an

You may ask, how is this possible? Isn’t Section 204(c) straightforward? Not quite. The answer lies in the fact that USCIS must independently examine the prior finding of “marriage fraud” in considering the subsequently filed immigrant visa petition. Before invoking the Sec. 204(c) bar to approval of a subsequent visa petition, USCIS must make an independent determination of fraud based upon the record, including but not limited to any evidence gathered during adjudication of the prior visa petition, but may not parrot or rely on the conclusions made by other adjudicators.

USCIS must have “substantial and probative” evidence of “marriage fraud.” Matter of Tawfik, 20 I. & N. Dec. 166, 168.

The determination is to be made by the USCIS district director while adjudicating the subsequent visa petition.

Matter of Samsen, 15 I. & N. Dec. 28, 1974 WL 29995 (B.I.A. 1974). The district director should not give conclusive effect to the determinations made in the prior proceedings, but should reach his own independent conclusion based on the evidence actually before him. Matter of F-, 9 I. & N. Dec. 684 (BIA 1962).

Therefore, in cases such as yours in which the USCIS has indicated it intends to deny the subsequent immigrant visa petition due to the prior finding of “marriage fraud,” new evidence can be submitted that demonstrates that the prior finding of “marriage fraud” was incorrect—i.e., evidence that shows that the prior marriage petition was based on a bona fide marriage, or that explains that the prior denial was based on an incomplete or inaccurate assessment of the facts. In cases in which the subsequent immigrant visa petition has already been denied, this new evidence should be submitted as part of a motion to reconsider. I recommend that you seek an experienced attorney to assist you in properly presenting the law and facts to the USCIS adjudicator to address the Section 204(c) bar.

* * * The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect the opinions, beliefs and viewpoints of the Asian Journal, its management, editorial board and staff.

* * * Darrick V. Tan, Esq. is admitted to practice law in California and Nevada. Mr. Tan is a graduate of UCLA and Southwestern University School of Law. He is a member of the Consumers Attorney Association of Los Angeles and is a former member of the Board of Governors of the Philippine American Bar Association. LAW OFFICES OF DARRICK V. TAN, 3580 Wilshire Boulevard, Suite 900, Los Angeles, CA 90010. Tel: 323639-0277. Email: info@dtanlaw.com (Advertising Supplement)

MANY people are of the perception that simply downloading a prenuptial agreement from the internet and signing it with their fiance offers them a bullet proof protection from a divorce. What many people do not know is that certain statutory requirements must be met in order for the prenuptial agreement to be valid and to withstand attack in court by your future spouse’s lawyer.

Family Code Section 1615 provides that a prenuptial agreement is not enforceable if the party against whom enforcement is sought proves either of the following (1) that party did not execute the agreement voluntarily or (2) The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party: (A) That party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party.

(B) That party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.

(C) That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. The issue of unconscionability shall be decided by the court as a matter of law.

A prenuptial agreement shall be deemed not executed voluntarily unless the court finds in writing or on the record all of the following:

(1) The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel. The advisement to seek independent legal counsel shall be made at least seven calendar days before the final agreement is signed.

(2) One of the following: (A) For an agreement executed between January 1, 2002, and January 1, 2020, the party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the final agreement and advised to seek independent legal counsel and the time the agreement was signed. (B) For an agreement executed on or after January 1, 2020, the party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the final agreement and the time the agreement was signed, regardless of whether the party is represented by legal counsel. (3) The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights and obligations the party was giving up by signing the agreement, and was proficient in the language in which the explanation of the party’s rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that the party received the information required by this paragraph and indicating who provided that information. (4) The prenuptial agreement was not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement. Having both you and your fiance represented by separate counsel during the drafting and execution of your prenuptial agreement can help avoid any of the problems noted above which will can result to your prenuptial agreement being found to be invalid by the court during your divorce proceeding and your assets divided according to California community property law.

* * * Please note that this article is not legal advice and is not intended as legal advice. The article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article does create any attorney client relationship between you and the Law Offices of Kenneth U. Reyes, APLC. This article is not a solicitation.

* * * Attorney Kenneth Ursua Reyes is a Certified Family Law Specialist. He was President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He is a