There are a number of cases where an alien fiancée was admitted to the United States pursuant to a fiancée visa petition filed by a U.S. citizen. The fiancée and the U.S. citizen married within 90 days. She filed an application for adjustment of status but it remained unadjudicated. After living together as husband and wife for almost two years, the U.S. citizen divorced his alien wife.
Can the wife continue to pursue the adjustment of status she filed?
The USCIS and the BIA and some lawyers say no. I say yes.
The naysayers anchor their denial on Section 245(d) of the Immigration and Nationality Act [8 USC 1255(d)] which provides: (d) The Attorney General may not adjust, under subsection (a), the status of an alien lawfully admitted to the United States for permanent residence on a conditional basis under section 216 [Conditional Permanent Resident Status for Certain Alien Spouses and Sons and Daughters]. The Attorney General may not adjust, under subsection (a), the status of a nonimmigrant alien described in section 101(a)(15)(K) [K visa holder] except to that of an alien lawfully admitted to the United States on a conditional basis under section 216 as a result of the marriage of the nonimmigrant (or, in the case of a minor child, the parent) to the citizen who filed the petition to accord that alien's nonimmigrant status under section 101(a)(15)(K).
What does the term “as a result of the marriage” mean?
In Choin v. Mukasey, 537 F.3d 1116 (9th Cir. 2008), the government argued that Section 245(d) excludes parties who are no longer married at the time of the adjudication. In other words, according to the government, the statue imposes a durational requirement and that to receive conditional resident status, an immigrant who is here on a K visa must stay married until the government gets around to adjudicating her application for adjustment of status.
But one U.S. Court of Appeals rejects this interpretation, saying that the language of Section 245(d) is ambiguous, that it does not impose a durational requirement for the marriage, and that there is nothing in the statute suggesting that an application that was valid when submitted should be automatically invalid when the petitioner’s marriage ends in divorce two years later. The court pointed out that under Section 216(c)(4)(B) of the Act [8 USC 1186a(c)(4)(B)], which provides that a non-citizen can apply for a waiver of the joint petition requirement if the marriage was entered into in “good faith,” the non-citizen spouse is not automatically returned to his or her native country upon divorce. Instead, the statute focuses on the good faith of the marriage, not the marriage’s success or failure. The court concluded that the purpose and context of Section 245(d) does not support the government’s reading of the statute that requires the automatic removal of immigrants whose marriages end in divorce while their application for adjustment of status languishes in the agency’s file cabinet. Choin v. Mukasey, 537 F.3d 1116 (9th Cir. 2008).
This analysis resolves only one side of the issue: The Attorney General may not deny adjustment of status to a fiancée visa holder whom a citizen married and then divorced while the adjustment of status application is pending.
The other equally critical side of the issue is: May the Attorney General grant adjustment of status to such an alien? The court in Choin v. Mukasey did not address this issue.
We submit that the Attorney General may grant adjustment if the fiancée visa holder whom the citizen married and then divorced meets the requirements of Section 245 of the Act, namely, that the alien was inspected and admitted or paroled into the United States, and
(1) the alien makes an application for such adjustment,
(2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and
(3) an immigrant visa is immediately available to him at the time his application is filed.
Furthermore, the alien must not be disqualified under the other provisions of the Act.
CAUTION: Adjustment of status is discretionary. Even if the alien meets all the statutory requirements, the Attorney General (or his delegates) may still deny adjustment. It is important that the adjustment application must be supported by evidence to establish that the marriage was in good faith. The alien must anticipate and prepare to rebut evidence that the former spouse might submit to show that the alien did not act in good faith in entering into the marriage.
ATTY. TIPON has a Master of Laws degree from Yale Law School where he specialized in Constitutional Law. He has also a Bachelor of Laws degree from the University of the Philippines. He placed third in the Philippine Bar Examination in 1956. His current practice focuses on immigration law and criminal defense. He writes law books for the world’s largest law book publishing company and writes legal articles for newspapers. He has a radio show in Honolulu, Hawaii with his son Noel, senior partner of the Bilecki & Tipon law firm, where they discuss legal and political issues. Office: American Savings Bank Tower, 1001 Bishop Street, Suite 2305, Honolulu, Hawaii, U.S.A. 96813. Tel. (808) 225-2645. E-Mail: email@example.com. Website: www.bileckilawgroup.com. He was born in Laoag City, Philippines. He served as a U.S. Immigration Officer. He is co-author with former Judge Artemio S. Tipon of the best-seller “Winning by Knowing Your Election Laws” and co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Atty. Tipon has personally experienced the entire immigration cycle by entering the United States on a non-immigrant working visa to write law books, adjusting his status to that of a lawful permanent resident, and becoming a naturalized United States citizen