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.

Our assistance is only a phone call, or e-mail communication away!

New York Immigration Lawyers > Immigration Publications > December 2008