By Robert L. Reeves and Nancy E. Miller

An important immigration decision was just issued (August 12, 2008) by the Ninth Circuit Court of Appeals which held that aliens who marry their fiancés after entering the United States with a fiancé visa and who subsequently obtain a divorce prior to obtaining permanent resident status are still entitled to adjust to resident status.

Yelena Choin entered the United States on a K-1 visa as the fiancée of Albert Tapia (a U.S. citizen). After they were married, Choin filed an application to adjust her status to that of a lawful permanent resident. The application languished with the Immigration & Naturalization Service (INS) (now the United States Citizenship and Immigration Services [USCIS]) for two years. Just before the end of that two year period, Choin and Tapia were divorced. INS then denied Choin’s application for adjustment, and she was placed in removal proceedings. The Immigration Judge and the Board of Immigration Appeals denied her application for adjustment to permanent resident status and ordered her removed.

Eligibility to apply for a fiancé (K) visa requires that the couple must have met in person within two years of the filing of the petition and must have a bona fide intention to marry within ninety days of the alien’ s entry into the U.S. Next, the couple must actually marry within ninety days of entry. After a timely marriage, the alien fiancés is entitled to file for adjustment of status. It should be noted that the only way the alien fiancé can adjust status is through the marriage to the K-1 petitioner. There is one exception and that is through a self petition based on being an abused spouse. Subsequent marriages, other family or employed-based petitions are not valid grounds to adjustment status for K visa recipients. For the first two years of the marriage, the K visa-holder can only adjust to conditional permanent resident status. In the final step to lawful permanent resident status, the alien spouse must file a petition to remove the conditional status. If the couple is still married, they file a joint petition. If, however, a joint petition is not possible, the alien spouse may apply for a good faith waiver of the joint petition requirement. Removal of conditional status has many specific complex requirements that are beyond the scope of this article.

In the Choin case the Ninth Circuit court never reached the issue of removal of conditional status. Her initial application for her green card remained pending for two years. By the time the government adjudicated her case her marriage had ended. Subsequently, the INS, the Immigration Judge, and the Board of Immigration Appeals said that, as a result of her divorce, she was not eligible to adjust her status and was deportable. They said that the relevant adjustment statute required that the couple be married at the time of the final adjudication of adjustment of status application.

The Ninth Circuit Court found that the case turned on the meaning of the term “as a result of the marriage of the non-immigrant”. The Court said, there is “…nothing in the language of the statute suggesting that an application that was valid when submitted should be automatically invalid when the petitioner’s marriage ends…” In further analyzing the relevant phrase, the Court acknowledged that the purpose of the Immigration Marriage Fraud Act of 1986 (which created the restriction on adjustment for K visa recipients) was to deter immigration-related marriage fraud. It held that nothing in the statute imposed a duration of marriage requirement. Rather, it found that the statute imposed a requirement that the marriage be entered into in good faith. Therefore, as long as the K visa recipient timely married the petitioner in good faith and applied for adjustment based on that marriage, the duration of the marriage was irrelevant. Indeed, the parties do not need to be married at the time USCIS adjudicates the adjustment application.

The government has long refused to grant adjustment of status for K visa recipients whose good faith marriage ended in divorce prior to the application’s adjudication. When the government takes several years to adjudicate these applications, it is gratifying to see that the termination of the good faith marriage by divorce need not result in the removal of the K visa holder.