August 16, 2008
Case Law Development: K visa applicants may adjust immigration status even if they divorce
A recent ninth circuit court of appeals opinion describes nicely the process by which immigrants can become eligible for lawful permanent residence based on marriage. Faculty may find it a useful outline to give to students interested in this aspect of family law.
The case involved a Board of Immigration Appeals (“BIA”) decision that denied a Russian immigrant her application for adjustment of status to conditional permanent alien and ordered her deported. The applicant had come to the US in 1998 on a K visa as the fiancée of U.S. citizen. The couple were married in February 1999 and soon thereafter the applicant filed an application to adjust her status to that of a lawful permanent resident. Two years later, she and her husband divorced, while she was still waiting to have an interview with the Immigration and Naturalization Service on her application. The INS subsequently denied her application because of her divorce and the BIA affirmed this decision, finding that the language “as a result of the marriage of the nonimmigrant” in the Immigration and Naturalization Act § 245(d) required that the applicant remain married during the entire period of her application. The court of appeals reversed, finding the phrase meant only that the adjustment of status could be based only on the marriage to the the original spouse-sponsor, not on any other basis; Thus the court held that "The purpose and context of § 245(d) also do not support the government’s reading of the statute that requires the automatic removal of immigrants whose marriages end in divorce while their application for adjustment of status languishes in the agency’s file cabinet."
Choin v. Mukasey, (U.S. 9th Cir. Ct. App., August 12, 2008)
Read the opinion online (Last visited August 15, 2008 bgf)
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