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Publications

December 2008

DIVORCE DOES NOT AUTOMATICALLY INVALIDATE
AN APPICATION FOR ADJUSTMENT OF STATUS

Any marriage based application for adjustment of status is not terminated automatically by a divorce prior to approval. A recent court of Appeals decision in the 9th circuit has recently held that if an alien spouse married within 90 days of approval and filed to adjust status to conditional residence, the alien spouse would not be ineligible even though the alien spouse obtained a divorce before the adjustment of status was adjudicated.

The Immigration Service and the Immigration Court had previously limited fiancé visa holders (K) to only obtain permanent residence through marriage to the fiancé who originally petitioned for them. This deprived the alien fiancée from adjusting on a petition based on a marriage to someone else on some other basis, such as a Labor Certification. The Government had always held that it needed 2 years of evidence to establish the good faith of the marriage, thereby rooting out marriage fraud. However, the 9th Circuit Court of Appeal’s decision held that the statute was not intended to disallow alien fiancé who marry a U.S. citizen in good faith and file their application pursuant to the marriage in spite of a divorce from obtaining permanent residence. The Court also noted that the decision was not based on the fact that the Immigration Service stalled for two and one half years. Instead the Court based its decision on the fact that the fiancé spouse had fulfilled the statutory requirement within 90 days by marrying and then filing the application shortly thereafter, thereby complying with the strict requirement of the statute.

In a similar decision by the same Court of Appeals decided in 2006, the Immigration Service had taken more than two and a half years to review the application. The citizen spouse had died in the interval. The Court held that nothing in the statute indicated that a petition that was valid at the time it was submitted was voided upon the citizen spouse’s death. The Court stated that an alien’s status as a qualified spouse should not turn on whether the department of Homeland Security happens to reach a pending application before the citizen spouse happens to die.

The reasoning of the Court of Appeals appears to have focused on the good faith of the alien spouse completing the statutory requirements. The alien fiancé who comes to the U.S. in the good faith expectation of becoming a permanent resident on marriage to a U.S. citizen and within 90 days marries the U.S. citizen, and then the U.S. citizen spouse fails and/or refuses to support a marriage application for the alien spouse should not make the alien spouse ineligible to receive permanent residence despite the divorce. Since divorce does not now lead to the automatic denial of a pending adjustment of status application, the failure and/or refusal of the citizen spouse to support an application after marriage should not prevent the alien spouse from receiving permanent residence or a showing of good faith. Otherwise, a citizen spouse could hold the alien spouse hostage to the citizen’s whim and caprice.


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New York Immigration Lawyers > Immigration Publications > December 2008
Publications

Featured

GREEN CARD PARDONS FOR UNDOCUMENTED WHO ARE SPOUSES OR CHILDREN OF CITIZENS

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January 2012

EB-5 VISA FOR INVESTORS WHO FORM A NEW ENTERPRISE

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FINALLY - RELIEF FOR MANY UNDOCUMENTED!

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December 2011

J EXCHANGE VISAS

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SKILLED IMMIGRANT VISAS FROM CHINA & INDIA SHOULD DOUBLE IN NUMBERS WITH NEW LAW

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DEPORTATIONS REVIEWED, PROSECUTORIAL DISCRETION

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SELF- PETITIONS - PROVISIONAL RESIDENTS SEPARATED OR DIVORCED FROM U. S. SPOUSES

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November 2011

U VISAS: VICTIMS OF TRAFFICKING AND VIOLENCE

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September 2011

BPARTNERS AND INELIGIBLE FAMILY MEMBERS: B-2 STATUS & EXTENSIONS

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BUSINESS VISAS FOR START UP COMPANIES

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TRAINING VISAS (H-3)

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August 2011

ENTREPRENEURS - SELF PETITIONS

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WAIVERS

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July 2011

REMOVAL, PHYSICAL

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PROSECUTORIAL DISCRETION: FOCUSING ON ENFORCEMENT PRIORITIES

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INVESTORS : IMMIGRANT VISAS: EB-5

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INVESTOR VISAS E-2

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June 2011

NATURALIZATION, WHY & HOW

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CHILD CITIZENSHIP ACT

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ADVANCE PAROLE

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May 2011

O VISAS FOR EXTRAORDINARY ABILITY IN BUSINESS, SCIENCE, ARTS OR ATHLETICS

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SAME SEX MARRIAGE, REPRIEVE OF DEPORTATION

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K-1 FINANCE VISA AND DIVORCE

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April 2011

H-1B PETITIONS FOR FISCAL YEAR 2012

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GUILTY PLEAS TO CRIMES – IMMIGRATION IMPACT

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VAWA- VIOLENCE AGAINST WOMEN ACT

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DETENTION OF IMMIGRANTS

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March 2011

REMOVAL REMEDIES

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U VISA

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February 2011

Asylum Application filed late: What are your options?

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January 2011

CONSULAR VISA PROCESSING

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PROSECUTORIAL DISCRETION

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VOLUNTARY DEPARTURE - WHAT HAPPENS IF AN ALIEN FAILS TO LEAVE?

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December 2010

DRIVING WITHOUT A LICENSE AND STOPPED BY POLICE

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H-1B VISA AVAILABILITY SOON TO CLOSE

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APPEALS TO THE BOARD OF IMMIGRATION

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November 2010

J-1 WAIVER OF THE TWO YEAR FOREIGN RESIDENCE REQUIREMENT FOR EXCHANGE VISITORS

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CO-SPONSORSHIP, AFFIDAVITS OF SUPPORT

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WORK AUTHORIZATION

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DERIVATIVE CITIZENSHIP FOR CHILDREN BORN ABROAD

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October 2010

CITIZENSHIP APPLICATIONS

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T and U VISAS, REVISIONS TO THESE PROGRAMS

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APPEALS OR MOTIONS TO REOPEN AND RECONSIDER IN ASYLUM CASES AND JUDICIAL REVIEW

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DEPORTATIONS: SHIFT IN U.S. POLICY

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September 2010

RELIGIOUS IMMIGRANT WORKERS

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INTRA-COMPANY TRANSFEREE (L-1)

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PARDON REVIEW PANEL

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August 2010

TEMPORARY VISITORS (B-1 BUSINESS, B-2 PLEASURE) AND EXTENSIONS OF STAY

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BATTERED SPOUSES, PARENTS AND CHILDREN

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FIANCE(E) OF U.S. CITIZEN (K-1)

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July 2010

GREEN CARDS, NEW, SECURE AND PRIVATE, VALID FOR TEN YEARS

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DEPORTATION ORDERS MAY BE REOPENED

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June 2010

NATURALIZATION

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May 2010

Help for Immigration cases in Arizona

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April 2010

H-1B WORK VISAS

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March 2010

U.S. CITIZENSHIP FOR FOREIGN BORN & ADOPTED CHILDREN

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February 2010

TEMPORARY PROTECTED STATUS (TPS)

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ASYLUM

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January 2010

EXTENSION OF STAY AND CHANGE OF STATUS

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December 2009

GREEN CARDS

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November 2009

H-1B, SPECIALTY OCCUPATION

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October 2009

ASYLUM WAIVER APPLICATION

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September 2009

TPS DENIALS MAY NOW BE APPEALED TO AN IMMIGRATION JUDGE

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August 2009

INTRA-COMPANY TRANSFEREES (L-1)

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ASYLUM FOR BATTERED WOMEN

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July 2009

DEATH OF A U.S. PETITIONER:

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June 2009

ARRESTS OF UNDOCUMENTED ALIENS

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May 2009

CANCELLATION OF REMOVAL AND ADJUSTMENT OF STATUS

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April 2009

VISITORS AND BUSINESS VISAS

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March 2009

RAIDS AND ROUNDUPS, IMMIGRATION

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February 2009

SPECIALTY OCCUPATION H-1

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January 2009

DEPORTATION ORDERS REOPENED

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December 2008

DIVORCE DOES NOT AUTOMATICALLY INVALIDATE

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November 2008

WHAT WE MAY EXPECT FROM PRESIDENT-ELECT OBAMA’S FIRST TERM

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CANADA OR MEXICO THREE YEAR PROFESSIONAL WORK VISAS

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October 2008

NEW BUSINESS START UP: L OR E VISAS

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September 2008

EXTENSIONS OF TEMPORARY STATUS

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August 2008

CHILDREN OF U.S. CITIZENS

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July 2008

MOTIONS TO REOPEN BASED ON CHANGE OF CIRCUMSTANCES AND NEW EVIDENCE

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June 2008

CHILD STATUS PROTECTION ACT, RECENT REVISIONS

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SPECIALIZED KNOWLEDGE FOR INTRA-COMPANY TRANSFEREES

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May 2008

EXTRAORDINARY ABILITY

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LABOR CASES - HIGHER EDUCATION

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April 2008

PAROLED ALIENS, ARE ELIGIBLE FOR GREEN CARD

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March 2008

IMMIGRANT, PUBLIC BENEFITS

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February 2008

IMMIGRATION INJUSTICE CORRECTION

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January 2008

FAST ACTION FOR IMMIGRATION DELAYS

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December 2007

BATTERED SPOUSE OR CHILD

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REVIEW OF GREEN CARD DENIAL

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November 2007

DIVERSITY VISA PROGRAM, 2009 LOTTERY

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September 2007

DETENTION AND REMOVAL, HELP AVAILABLE

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August 2007

A WAY TO OBTAIN RESIDENCE

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July 2007

EMPLOYMENT VISAS

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June 2007

IMMIGRATION REFORM

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