Wednesday, March 23, 2011

Matter of Sesay: K-1 Fiancé(e) Who Timely Married Petitioner May Adjust Status Even If Marriage Has Ended, BIA Holds

The Board of Immigration Appeals held in Matter of Sesay, 25 I & N Dec. 431 (Mar. 17, 2011) that (1) under INA § 245(d) [8 USCA § 1255(d)] (2006), a fiancé(e) visa holder can only adjust status based on the marriage to the fiancé(e) petitioner (Matter of Zampetis, 14 I. & N. Dec. 125 (Reg. Comm'r 1972), superseded), (2) a fiancé(e) visa holder whose bona fide marriage to the fiancé(e) visa petitioner is more than two years old at the time when the adjustment application is adjudicated is not subject to the provisions for conditional resident status under INA § 216 [ 8 USCA § 1186a] (2006), (3) a fiancé(e) visa holder satisfies the visa eligibility and visa availability requirements of INA § 245(a) [8 USCA § 1255(a)] on the date when he or she is admitted to U.S. as a K-1 nonimmigrant provided that the fiancé(e) enters into a bona fide marriage with the fiancé(e) petitioner within 90 days, (4) a fiancé(e) visa holder may be granted adjustment of status under INA § 245(a) and (d) even if the marriage to the fiancé(e) visa petitioner does not exist at the time when the adjustment application is adjudicated if the applicant can demonstrate that he or she entered into a bona fide marriage within the 90-day period to the fiancé(e) visa petition.

The BIA held that an alien who enters on a K-1 visa and timely enters into a bona fide marriage with the petitioning spouse, remains eligible to adjust status under INA §245(a) despite termination of the marriage. Matter of Sesay, 25 I&N Dec. 431 (BIA 2011) AILA Doc. No. 11032262.



The respondent, a native and citizen of Sierra Leone, met his future United States citizen wife in 1997 when they were both studying in Addis Ababa, Ethiopia. She filed a Petition for Alien Fiancé(e) (Form I-129F) on the respondent’s behalf, which was approved by the former Immigration and Naturalization Service (“INS”)1 on October 27, 1999. The respondent was issued a K-1 nonimmigrant fiancé visa pursuant to section 101(a)(15)(K)(i) of the Act, 8 U.S.C. § 1101(a)(15)(K)(i) (2000), on February 4, 2000. On April 18, 2000, the respondent was admitted to the United States as a fiancé for a 90-day period. He married the fiancée petitioner on April 28, 2000. The couple had a son, born March 29, 2001. On June 20, 2001, the respondent filed an adjustment of status application with the INS.

On November 8, 2002, the INS mistakenly denied the respondent’s adjustment application because it had not adjudicated the application within 2 years of his April 28, 2000, marriage. The couple divorced on June 5, 2003. In a Notice to Appear dated October 29, 2003, the Department of Homeland Security (“DHS”) alleged that the respondent was in the United States in violation of law pursuant to section 237(a)(1)(B) of the Act, 8 U.S.C. § 1227(a)(1)(B) (2000). On November 24, 2004, the respondent married his current United States citizen spouse. She filed a family-based immigrant visa petition, Form I-130 (Petition for Alien Relative), on the respondent’s behalf, which the United States Citizenship and Immigration Services (“USCIS”) approved on July 26, 2005.

In removal proceedings, the respondent conceded removability and sought to renew his adjustment application based on the approved fiancé petition filed by his first wife. He also filed an adjustment application based on the approved I-130 filed by his current wife. In a decision dated April 24, 2007, the Immigration Judge denied both adjustment applications. He denied adjustment based on the approved I-130 filed by the second wife because the respondent, having been admitted on a fiancé visa, could only adjust status as a result of the marriage to the fiancée petitioner. The Immigration Judge denied the adjustment application based on the first marriage for lack of jurisdiction because the respondent was no longer married to the fiancée petitioner. The respondent has appealed from the Immigration Judge’s decision.

ISSUES

Fiancé(e) Adjustment Based on a Second Marriage

The respondent now concedes that he cannot adjust status based on the I-130 visa petition filed by his second wife. We agree, because the language of section 245(d) of the Act clearly precludes fiancé(e)s from adjusting status on any basis other than marriage to the fiancé(e) petitioner. See Markovski v. Gonzales, 486 F.3d 108, 110 (4th Cir. 2007) (stating that the language of section 245(d) of the Act is clear insofar as it bars K-1 visa holders from adjusting status on any basis other than marriage to the fiancé(e) petitioner); see also Kalal v. Gonzales, 402 F.3d 948, 951 (9th Cir. 2005) (same).

Jurisdiction Over Fiancé(e) Adjustment

On appeal, the DHS acknowledges that the INS improperly denied the respondent’s adjustment application in 2002, because there is no requirement that a fiancé(e) adjust status within 2 years of the marriage. We agree with the parties that the Immigration Judge has jurisdiction to adjudicate the renewal of the respondent’s fiancé adjustment application under section 245(a) of the Act in removal proceedings. See 8 C.F.R. §§ 245.2(c), 1245.2(c) (2010).

Dissolution of a Fiancé(e)’s Marriage

The remaining issue is whether a fiancé(e) visa holder who timely marries the fiancé(e) petitioner remains eligible to adjust status outside the conditional residence period after dissolution of their bona fide marriage

K-1/AOS- marriage terminated at time of adjustment of status.
A fiancé(e) visa holder satisfies the visa eligibility and visa availability requirements ofsection 245(a) of the Act on the date he or she is admitted to the United States as a K-1 nonimmigrant, provided that the fiancé(e) enters into a bona fide marriage with the fiancé(e) petitioner within 90 days.  Therefore, a fiancé(e) visa holder may be granted adjustment of status under sections 245(a) and(d) of the Act, even if the marriage to the fiancé(e) visa petitioner does not exist at the time that the adjustment application is adjudicated, if the applicant can demonstrate that s/he entered into bona fide a marriage within the 90-day period to the fiancé visa petitioner.  Consistent with Choin v. Mukasey, 537 F.3d 1116 (9th Cir. 2008).

Here, the respondent completed the required steps in the fiancé adjustment process.  He was not subject to the  provisions of section 216 because his marriage was more than 2 years old when his adjustment application was adjudicated.  He established his prima-facie eligibility for adjustment of status based on his marriage to the fiancé(e) petitioner.  The respondent seeks to renew his adjustment application premised on his first marriage, which the INS improperly denied.  Thee respondent’s divorce from the fiancé(e) petitioner does not render him ineligible for adjustment of status under sections 245(a) and (d) of the Act.

http://www.justice.gov/eoir/vll/intdec/vol25/3707.pdf

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