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BIA rules K-1 Fiancé may still adjust despite divorce

By Atty. Allison Aquino

The Board of Immigration Appeals (BIA) issued a decision on March 17, 2011, that is tremendously favorable to individuals who entered the United States as a K-1 fiancé, but whose marriage has been terminated before being granted permanent residency. The new appellate case now allows certain individuals who entered as a K-1 fiancé to still obtain permanent residency even though the couple have already divorced.

The case, Matter of Sesay, 25 I&N Dec. 431 (BIA 2011), involves a man from the country of Sierra Leone who had entered the United States as a K-1 fiancé. He had met his fiancée in Ethiopia, where they were both studying. After he entered the United States, he and his wife complied with the immigration requirement that they get married within 90 days of his entry. Mr. Sesay, however, only filed his adjustment of status application for permanent residency about 14 months after his entry. The immigration service erroneously denied his application, which they admitted during removal proceedings.

Unfortunately, Mr. Sesay and his wife got divorced about 7 months after his adjustment of status application was erroneously denied. The Department of Homeland Security (DHS) initiated removal proceedings against Mr. Sesay a few months later. About a year after removal proceedings had been initiated, Mr. Sesay got married again to another US citizen.

In removal proceedings, Mr. Sesay applied again for adjustment of status based on his new marriage. Mr. Sesay also renewed the denied adjustment of status application based on his prior marriage. The immigration judge denied the adjustment application based on the second marriage, ruling that a K-1 fiancé cannot adjust through any other basis except through the marriage to the petitioning K-1 fiancé. The immigration judge also ruled that he no authority to review the denied adjustment application based on the first marriage since Mr. Sesay and the K-1 petitioner had already divorced.

Mr. Sesay appealed the immigration judge’s ruling that he had no authority over the denied adjustment application based on his marriage to the K-1 petitioner to the BIA. The BIA ruled in favor of Mr. Sesay, stating that he continues to be eligible to adjust status to permanent resident based on his marriage to the K-1 petitioner, even though they had divorced almost 8 years ago.

The rationale of the BIA is that Mr. Sesay fulfilled the requirements of the immigration laws when he married the K-1 petitioner within 90 days of his entry. Therefore, even though he and the K-1 petitioner were no longer married, he continues to be eligible for permanent residency so long as he can establish that the marriage between he and the K-1 petitioner was legitimate and bona fide. In Mr. Sesay’s case, he and the K-1 petitioner had a child together about 11 months after their marriage. The BIA further ruled that Mr. Sesay is eligible for adjustment to permanent residency, rather than conditional residency, since his application will be adjudicated more than 2 years after his marriage to the K-1 petitioner.

The decision of the BIA now allowing K-1 fiancées who marry their K-1 petitioner within 90 days of entry to the United States to adjust status despite a divorce is a complete reversal by the immigration service. Individuals who may have been denied adjustment of status in the past should seek legal advice to see whether this court ruling may favorably affect their eligibility for permanent residency.

The decision of the court thankfully recognizes the difficult realities of marriage today. It allows individuals who have already been traumatized by an unsuccessful marriage to still seek the opportunities available in the United States, rather than be penalized for having marital problems.

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For further information, please schedule an appointment with Atty. Allison Aquino or Atty. Richard M. Loew of Aquino & Loew, A Professional Law Corporation, 625 Fair Oaks Avenue, Suite 101, South Pasadena, CA, 91030; (626) 799-3089; info@aquinolaw.net. Please also visit Aquino & Loew at www.aquinolaw.net. Aquino & Loew also handles family law and criminal law matters. Free initial office consultation is available upon appointment.

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