By Attorneys Robert L. Reeves and Joseph I. Elias
On March 17, 2011, the Board of Immigration Appeals (BIA) in, Matter of Sesay 25 I&N Dec. 431 (BIA 2011) handed a victory to K-1 fiancée immigrants. The K-1 visa category is granted to immigrants in order to enter the United States as fiancé(e)s and marry their US citizen petitioners. Congress placed many severe restrictions on this visa category in order to deter visa fraud. Unfortunately, some of these restrictions led to harsh interpretations of the law by the Immigration Service. The BIA in, Sesay, has now eliminated one of the harshest interpretations by United States Citizenship and Immigration Services (USCIS).
Under the K-1 visa category, an immigrant is admitted into the United States in order to marry his or her US citizen fiancé(e) within 90 days of entry. Once married, the K-1 is eligible to apply for adjustment of status to a conditional permanent resident. After the K-1 obtains conditional resident status, the K-1 is then required to apply for removal of the condition by filing a joint petition with the US citizen spouse just prior to the second anniversary of the grant of conditional resident status. K-1’s are prohibited from filing to adjust status under any basis other than their marriage to their US citizen petitioners.
If the marriage ended before filing for adjustment of status or while the adjustment of status was pending, the K-1 would lose all rights to permanent resident status. This was the policy even when the Immigration Service took several years to process the case. The USCIS’ position was that if the marriage ended, it was justified in denying the adjustment of status application on this basis alone. Since K-1’s are prohibited from adjusting status under any other basis such as a new marriage to a new US citizen, or some other family petition, or even through an employment-based green card application, the K-1 was left with no way to adjust status, and would have to return to their home country.
Under ideal circumstances, every K-1 relationship would be long lasting, and each K-1 beneficiary would become a full permanent resident two years after receiving conditional resident status. However, life is not always ideal. Many K-1s have found themselves in the unfortunate predicament of having entered into a loveless, abusive, or nonfunctioning marriage with their US citizen petitioners. Many marriages ended before the K-1 spouse had an opportunity to file for adjustment of status. Other K-1’s who filed for adjustment of status while married were denied if the K-1 applicant obtained a divorce or if the K-1 petitioner died.
The BIA conducted a careful examination of K-1 immigration law and history in Sesay. It held that if the K-1 entered into a bona fide marriage within 90 days of entry to the United States, that K-1 could adjust status even if the marriage to the US citizen petitioner terminated. In other words, if the marriage ends or ended without an adjustment of status application having been filed or while the Immigration Service was still processing the adjustment of status application, the K-1 would remain eligible to adjust and the USCIS could no longer deny the case because the marriage is no longer in existence. The K-1 is still required to demonstrate that the marriage was not a sham and a bona fide one when entered into. The BIA also stated that the K-1 may be granted full permanent resident status if the adjustment had been pending for more than two years.
The BIA decision is binding on all immigration officers and is in line with federal court cases dealing with the same matter. The major difference, however, is that the federal court cases were only binding on immigration officers within their jurisdiction. The BIA decision now provides a uniform national rule that benefits current and past K-1 immigrants. K-1’s are no longer forced to make a decision to remain in an unhealthy marriage in order to adjust status. As long as they can show that their marriage was not a sham, they may terminate their marriages and successfully adjust status to permanent resident. Many of those who were denied permanent resident status, or who may even be in deportation proceedings now, may be eligible to have their adjustment of status applications revisited and granted.
If you entered on a K-1 visa and married the petitioner within 90 days, but never filed for adjustment of status or had your application denied because of divorce or petitioner’s death, you may now be eligible to file for permanent residency.
