Cite as 25 I&N Dec. 431 (BIA 2011) Interim Decision #3707
431
Matter of Alfred Kebbie SESAY, Respondent
Decided March 17, 2011
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Under section 245(d) of the Immigration and Nationality Act, 8 U.S.C. § 1255(d) (2006),
a fiancé(e) visa holder can only adjust status based on the marriage to the fiancé(e)
petitioner. Matter of Zampetis, 14 I&N Dec. 125 (Reg. Comm’r 1972), superseded.
(2) A fiancé(e) visa holder whose bona fide marriage to the fiancé(e) visa petitioner is more
than 2 years old at the time the adjustment application is adjudicated is not subject to the
provisions for conditional resident status under section 216 of the Act, 8 U.S.C. § 1186a
(2006).
(3) A fiancé(e) visa holder satisfies the visa eligibility and visa availability requirements of
section 245(a) of the Act on the date he or she is admitted to the United States as a K-1
nonimmigrant, provided that the fiancé(e) enters into a bona fide marriage with the
fiancé(e) petitioner within 90 days.
(4) A fiancé(e) visa holder may be granted adjustment of status under sections 245(a) and
(d) of the Act, even if the marriage to the fiancé(e) visa petitioner does not exist at the time
that the adjustment application is adjudicated, if the applicant can demonstrate that he or
she entered into a bona fide marriage within the 90-day period to the fiancé(e) visa
petitioner.
FOR RESPONDENT: Thomas A. Elliot, Esquire, Washington, D.C.
FOR THE DEPARTMENT OF HOMELAND SECURITY: Billy J. Sapp, Senior Attorney
BEFORE: Board Panel: NEAL, Acting Chairman; GREER and MALPHRUS, Board
Members.
GREER, Board Member:
This case addresses the issue whether an alien who entered the United States
on a nonimmigrant K-1 fiancé(e) visa and met the condition of timely
marrying the petitioning spouse remains eligible to adjust status when the
marriage has ended. We hold that such an alien is eligible for adjustment.
Consequently, we will sustain the respondent’s appeal and remand the record
to give him an opportunity to renew his application for adjustment of statusCite as 25 I&N Dec. 431 (BIA 2011) Interim Decision #3707
1 On March 1, 2003, pursuant to the Homeland Security Act of 2002, Pub. L. No. 107-296,
116 Stat. 2135, the functions of the Immigration and Naturalization Service were transferred
from the Department of Justice (“DOJ”) to the Department of Homeland Security (“DHS”).
The United States Citizenship and Immigration Services, an agency within the DHS, is
authorized to provide immigration and naturalization benefits to aliens, including the
adjudication of adjustment of status applications. As part of this restructuring, the
regulations were separated into DHS and DOJ counterparts. Aliens and Nationality;
Homeland Security; Reorganization of Regulations, 68 Fed. Reg. 9824 (Feb. 28, 2003).
432
under sections 245(a) and (d) of the Immigration and Nationality Act, 8 U.S.C.
§§ 1255(a) and (d) (2006), before the Immigration Judge.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent, a native and citizen of Sierra Leone, met his future
United States citizen wife in 1997 when they were both studying in
Addis Ababa, Ethiopia. She filed a Petition for Alien Fiancé(e) (Form I-129F)
on the respondent’s behalf, which was approved by the former Immigration
and Naturalization Service (“INS”)1
on October 27, 1999. The respondent was
issued a K-1 nonimmigrant fiancé visa pursuant to section 101(a)(15)(K)(i) of
the Act, 8 U.S.C. § 1101(a)(15)(K)(i) (2000), on February 4, 2000. On
April 18, 2000, the respondent was admitted to the United States as a fiancé
for a 90-day period. He married the fiancée petitioner on April 28, 2000. The
couple had a son, born March 29, 2001. On June 20, 2001, the respondent
filed an adjustment of status application with the INS.
On November 8, 2002, the INS mistakenly denied the respondent’s
adjustment application because it had not adjudicated the application within
2 years of his April 28, 2000, marriage. The couple divorced on June 5, 2003.
In a Notice to Appear dated October 29, 2003, the Department of Homeland
Security (“DHS”) alleged that the respondent was in the United States in
violation of law pursuant to section 237(a)(1)(B) of the Act,
8 U.S.C. § 1227(a)(1)(B) (2000). On November 24, 2004, the respondent
married his current United States citizen spouse. She filed a family-based
immigrant visa petition, Form I-130 (Petition for Alien Relative), on the
respondent’s behalf, which the United States Citizenship and Immigration
Services (“USCIS”) approved on July 26, 2005.
In removal proceedings, the respondent conceded removability and sought
to renew his adjustment application based on the approved fiancé petition filed
by his first wife. He also filed an adjustment application based on the
approved I-130 filed by his current wife. In a decision dated April 24, 2007,
the Immigration Judge denied both adjustment applications. He denied
adjustment based on the approved I-130 filed by the second wife because theCite as 25 I&N Dec. 431 (BIA 2011) Interim Decision #3707
2
The parties do not dispute the respondent’s removability, so we need not address that issue.
3 The Act lists three nonimmigrant categories under section 101(a)(15)(K): (i) fiancé(e)s
seeking to enter the United States to conclude a valid marriage; (ii) aliens married to a
United States citizen who has filed a family-based immigrant visa petition that is pending
(continued…)
433
respondent, having been admitted on a fiancé visa, could only adjust status as
a result of the marriage to the fiancée petitioner. The Immigration Judge
denied the adjustment application based on the first marriage for lack of
jurisdiction because the respondent was no longer married to the fiancée
petitioner. The respondent has appealed from the Immigration Judge’s
decision.2
II. ISSUES
A. Fiancé(e) Adjustment Based on a Second Marriage
The respondent now concedes that he cannot adjust status based on the
I-130 visa petition filed by his second wife. We agree, because the language
of section 245(d) of the Act clearly precludes fiancé(e)s from adjusting status
on any basis other than marriage to the fiancé(e) petitioner. See Markovski
v. Gonzales, 486 F.3d 108, 110 (4th Cir. 2007) (stating that the language of
section 245(d) of the Act is clear insofar as it bars K-1 visa holders from
adjusting status on any basis other than marriage to the fiancé(e) petitioner);
see also Kalal v. Gonzales, 402 F.3d 948, 951 (9th Cir. 2005) (same).
B. Jurisdiction Over Fiancé(e) Adjustment
On appeal, the DHS acknowledges that the INS improperly denied the
respondent’s adjustment application in 2002, because there is no requirement
that a fiancé(e) adjust status within 2 years of the marriage. We agree with the
parties that the Immigration Judge has jurisdiction to adjudicate the renewal
of the respondent’s fiancé adjustment application under section 245(a) of the
Act in removal proceedings. See 8 C.F.R. §§ 245.2(c), 1245.2(c) (2010).
C. Dissolution of a Fiancé(e)’s Marriage
The remaining issue is whether a fiancé(e) visa holder who timely marries
the fiancé(e) petitioner remains eligible to adjust status outside the conditional
residence period after dissolution of their bona fide marriage.3Cite as 25 I&N Dec. 431 (BIA 2011) Interim Decision #3707
(…continued)
adjudication; and (iii) minor children accompanying or following to join aliens described in
clauses (i) and (ii). The regulations classify the fiancé(e) visa category as K-1 and the minor
children accompanying or following to join the fiancé(e) as K-2. The spouse category is
classified for visa purposes as K-3, with the minor children designated as K-4. 8 C.F.R.
§§ 214.1(a)(1)(v), (2) (2010). This decision only addresses the K-1 nonimmigrant fiancé(e)
visa holders, whom we refer to as fiancé(e)s.
4 Filling these statutory gaps might be better accomplished through clarifying statutory
amendments or rulemaking. However, we are required to resolve the dispositive issues in
cases before us.
434
The resolution of this issue depends upon whether the respondent can satisfy
the requirements of sections 245(a) and (d) of the Act. These and other
statutory provisions governing a fiancé(e)’s adjustment of status have
undergone substantial revision over the years. The result is an incomplete
statutory construct, requiring us to fill a significant statutory void and interpret
ambiguous language.4
We do so primarily by reference to the law as originally
enacted, because the changes to it were designed to address marriage fraud, not
the issue presented here regarding termination of an apparently bona fide
marriage. Further, the original regulatory and statutory petition procedure for
fiancé(e) adjustments remains largely intact. Thus, the former law serves as
a guide to congressional intent in this case. We also rely on longstanding
consular practice, in addition to DHS guidance interpreting the effect of part
of the statutory changes.
III. STATUTORY AMBIGUITIES FOR
FIANCÉ(E) ADJUSTMENT
The statutory gaps and ambiguities arise principally from amendments that
eliminated fiancé(e) adjustments under former section 214(d) of the Act
8 U.S.C. § 1184(d) (1970), and incorporated them into the adjustment scheme
under sections 245(a) and (d) of the Act. First, section 245(a) requires
applicants to establish immigrant visa eligibility and availability. However,
Congress did not specify the statutory mechanism that would allow
nonimmigrant fiancé(e)s to qualify as immigrants. Unless we construe the
statute to allow these nonimmigrants to adjust status, we face the absurd result
of disqualifying all fiancé(e) visa holders from statutory eligibility. Such a
result would clearly be at odds with the entire basis for fiancé(e) visa status
and current administrative practice.Cite as 25 I&N Dec. 431 (BIA 2011) Interim Decision #3707
5 Section 101(a)(15)(K) of the Act, as it was enacted in 1970, included the following in the
definition of a nonimmigrant:
(continued…)
435
Second, family-based immigrants are not admissible for adjustment
purposes under section 245(a) of the Act if the marriage no longer exists. See,
e.g., Matter of Bark, 14 I&N Dec. 237, 240 (BIA 1972) (explaining that under
section 204(e) of the Act, 8 U.S.C. § 1154(e) (1970), visa petition procedures
do not allow admission if, at the time of arrival or adjustment of status, the
alien is not entitled to the immigrant visa classification accorded to him by the
visa petition), rev’d on other grounds, Bark v. INS, 511 F.2d 1200 (9th Cir.
1975); see also 8 C.F.R. § 205.1(a)(3) (2010) (providing for the automatic
revocation of an immigrant visa petition if the marriage is terminated before
adjustment). In the past, former section 214(d) of the Act did not require the
fiancé(e)’s qualifying marriage to be intact at the time of adjustment, provided
that the fiancé(e) was otherwise admissible. Thus, the effect of dissolution of
the fiancé(e)’s marriage on admissibility is unclear where fiancé(e) status is
not based on an immigrant visa petition or classification.
Third, section 245(d) contemplates that fiancé(e)s will apply for conditional
permanent residence under section 216 of the Act, 8 U.S.C. § 1186a (2006),
based solely on marriage to the fiancé(e) petitioner. In this case, the
respondent’s adjustment application was adjudicated outside the relevant
2-year time frame governing conditional permanent residents. Therefore,
whether the respondent’s adjustment application remains subject to the
provisions of section 216 is not clear.
Accordingly, to resolve these questions, we examine the statutory history
of relevant enactments to aid in determining whether nonimmigrant fiancé(e)s
(1) can satisfy the immigrant visa eligibility and availability requirements of
section 245(a); (2) remain admissible despite divorce from the fiancé(e)
petitioner; and (3) are uniformly affected by the conditional permanent
resident requirements described in section 245(d) of the Act. Finally, we
examine the discretionary aspect of the fiancé(e) adjustment application.
IV. STATUTORY HISTORY OF PROVISIONS
GOVERNING FIANCÉ(E) ADJUSTMENT
A. Original 1970 Statutory Scheme for Fiancé(e)s
In 1970, Congress created a new nonimmigrant category for fiancé(e)s of
United States citizens by adding section 101(a)(15)(K) to the Act.5
See Act ofCite as 25 I&N Dec. 431 (BIA 2011) Interim Decision #3707
(…continued)
an alien who is the fiancée or fiancé of a citizen of the United States and who
seeks to enter the United States solely to conclude a valid marriage with the
petitioner within ninety days after entry, and the minor children of such fiancée or
fiancé accompanying him or following to join him.
6 Section 214(d) of the Act, which was enacted by section 3(b) of the Act of April 7,1970,
84 Stat. at 117, provided as follows:
A visa shall not be issued under the provisions of section 101(a)(15)(K) until the
consular officer has received a petition filed in the United States by the fiancée or
fiancé of the applying alien and approved by the Attorney General. The petition
shall be in such form and contain such information as the Attorney General shall,
by regulation, prescribe. It shall be approved only after satisfactory evidence is
submitted by the petitioner to establish that the parties have a bona fide intention to
marry and are legally able and actually willing to conclude a valid marriage in the
United States within a period of ninety days after the alien’s arrival. In the event the
marriage with the petitioner does not occur within three months after the entry of the
said alien and minor children, they shall be required to depart from the United States
and upon failure to do so shall be deported in accordance with sections 242 and 243.
In the event the marriage between the said alien and the petitioner shall occur within
three months after the entry and they are found otherwise admissible, the Attorney
General shall record the lawful admission for permanent residence of the alien and
minor children as of the date of the payment of the required visa fees.
436
Apr. 7, 1970, Pub. L. No. 91-225, § 1(b), 84 Stat. 116, 116. Congress did so
“to resolve the problem presented by fiancées of American citizens who seek
to enter the United States to be married. Since they intend to remain
permanently in the United States, they cannot qualify as bona fide
nonimmigrants and, until married, immigrant visas may not be available to
them.” See H.R. Rep. No. 91-851, at 2 (1970), reprinted in 1970
U.S.C.C.A.N. 2750, 2752, 1970 WL 5815 at **2.
Under the statute as it was originally enacted, fiancé(e)s adjusted status
under section 214(d) of the Act, which provided that if the marriage between
the petitioner and the alien fiancé(e) occurred within 3 months after the alien’s
entry and he or she was found otherwise admissible, the Attorney General was
required to record the alien’s lawful admission for permanent residence upon
payment of the required visa fees.6
Pursuant to the regulations then in effect,
the alien fiancé(e) had to file an adjustment application (Form I-485) with the
INS District Director who had jurisdiction over the alien’s place of residence.
8 C.F.R. § 245.2(d) (1971). At that time, we likened section 214(d) applicants
to immediate relatives, which are defined in section 201(b)(2)(A)(i) of the Act,Cite as 25 I&N Dec. 431 (BIA 2011) Interim Decision #3707
7 Section 245(d) of the Act currently provides as follows:
The Attorney General may not adjust, under subsection (a), the status of an alien
lawfully admitted to the United States for permanent residence on a conditional
basis under section 216. The Attorney General may not adjust, under subsection (a),
the status of a nonimmigrant alien described in section 101(a)(15)(K) except to that
of an alien lawfully admitted to the United States on a conditional basis under
section 216 as a result of the marriage of the nonimmigrant (or, in the case of a
minor child, the parent) to the citizen who filed the petition to accord that alien’s
nonimmigrant status under section 101(a)(15)(K).
8 This requirement may be waived under limited circumstances. See section 214(d)(1) of the
Act; 8 C.F.R. § 214.2(k)(2) (2010).
437
8 U.S.C. § 1151(b)(2)(A)(i) (2006). See Matter of Dixon, 16 I&N Dec. 355,
357 n.2 (BIA 1977).
B. 1986 Amendments and the Existing Statutory
Scheme for Fiancé(e)s
The Immigration Marriage Fraud Amendments Act of 1986, Pub. L. No.
99-639, 100 Stat. 3537 (“IMFA”), added to the Act an array of provisions that
were expressly designed to combat marriage fraud and other immigration
fraud. With regard to fiancé(e)s, the IMFA modified section 214(d) and added
section 245(d) to the Act to make four important changes to the fiancé(e)
adjustment process.7
IMFA §§ 2(e), 3(a)-(c), 100 Stat. at 3542. First, the
fiancé(e) visa petition could not be approved unless the alien and his or her
United States citizen fiancé(e) met in person within the 2-year period
preceding the filing of the petition.8
Congress expected this provision to deter
the “many abuses of the ‘mail order bride’ business.” See S. Rep. No. 99-491,
at 9 (1986) (report of the Committee on the Judiciary) (“Senate Report”).
Second, the IMFA changed the statutory section governing alien fiancé(e)
acquisition of lawful permanent resident status. It eliminated the streamlined
adjustment procedure under section 214(d) of the Act, which was nearly
automatic for fiancé(e)s facing no substantive ground of inadmissibility.
Instead, the IMFA incorporated the alien fiancé(e)’s adjustment of status into
the statutory scheme under section 245 of the Act.
Third, section 245(d) provides that a fiancé(e) can now only adjust status
based on the marriage to the fiancé(e) petitioner. Thus, the holding in Matter
of Zampetis, 14 I&N Dec. 125 (Reg. Comm’r 1972), that a K-1 nonimmigrant
fiancé could establish adjustment eligibility based on to his marriage to aCite as 25 I&N Dec. 431 (BIA 2011) Interim Decision #3707
438
spouse other than the I-129F petitioner, was superseded by the enactment of
section 245(d). See Markovski v. Gonzales, 486 F.3d at 111 n.2.
Fourth, fiancé(e)s are subject to conditional resident status under section
216 of the Act. Like other “alien spouses” that are defined in section
216(g)(1) of the Act, fiancé(e) visa holders are lawfully admitted to the United
States on a conditional basis under section 216. Two years after obtaining
conditional permanent resident status, the couple must seek to waive the
conditions on such status. Specifically, the alien spouse and the United States
citizen spouse jointly file a petition in which they affirm that they are still
married and that they entered into a valid marriage, not one to obtain
immigration benefits. See generally Matter of Stowers, 22 I&N Dec. 605,
608-09 (BIA 1999). If the alien is unable to file a joint petition, a waiver of
the requirement may be available under section 216(c)(4) of the Act, even if
the marriage has ended. Id. at 609-10.
V. INTERPRETATION OF FIANCÉ(E) ADJUSTMENT
A. Section 245(a) of the Act
With the 1970 law and the 1986 amendments as a backdrop to our
discussion, we turn to the current governing statute for fiancé(e) adjustment at
section 245(a) of the Act, which provides, in part, as follows:
The status of an alien who was . . . admitted . . . into the United States . . . may be
adjusted by the Attorney General, in his discretion and under such regulations as he
may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the
alien makes an application for such adjustment, (2) the alien is eligible to receive an
immigrant visa and is admissible to the United States for permanent residence, and
(3) an immigrant visa is immediately available to him at the time his application is
filed.
(Emphasis added.)
Despite incorporating fiancé(e) adjustments into section 245, Congress did
not alter the prior procedure through which fiancé(e)s were admitted to the
United States on a nonimigrant visa or specify a mechanism through which the
fiancé(e) could satisfy the “immigrant visa” requirements of section 245(a).
To avoid the absurdity of rendering the provision completely unavailable to
fiancé(e) entrants, we construe the statute to allow fiancé(e)s to continue to
adjust status, even though they cannot satisfy the literal terms of sections
245(a)(2) and (3), which require immigrant visa eligibility and availability.
As originally envisioned, fiancé(e) visa holders were recognized as the
functional equivalents of immediate relatives for purposes of immigrant visa
eligibility and availability. See Matter of Dixon, 16 I&N Dec. at 357 n.2. TheCite as 25 I&N Dec. 431 (BIA 2011) Interim Decision #3707
9
In contrast, the nonimmigrant status of an alien admitted on a K-3 visa under
section 101(a)(15)(K)(ii) of the Act is automatically terminated by a divorce from the United
States citizen spouse. 8 C.F.R. § 214.2(k)(11)(iv).
439
1986 amendments did not alter that treatment of fiancé(e)s. Accordingly,
consistent with historical practice, we conclude that fiancé(e) visa holders
remain similarly situated to immediate relatives in satisfaction of the section
245(a) immigrant visa requirements.
Since the creation of the K-1 visa, a fiancé(e) who entered the United States
and married the United States citizen “would be classifiable as an ‘immediate
relative,’” because the fiancé(e) adjusts status as the spouse of a United States
citizen. See H.R. Rep. No. 91-851, at 8, 1970 U.S.C.C.A.N. at 2758, 1970 WL
5815 at **8; see also Matter of Dixon, 16 I&N Dec. at 357 n.2 (noting that
lawful permanent residence is accorded to a section 214(d) applicant as an
immediate relative). Consistent with this analogy to immediate relatives,
consular officers are instructed to evaluate an alien’s eligibility for a K-1 visa
as if it were an immigrant visa. Similarly, consular officers are to determine
a fiancé(e)’s eligibility for a waiver of inadmissibility as if the alien was the
immigrant spouse of a United States citizen. See Vol. 9, Foreign Affairs
Manual § 41.81 note 9.1 (CT: VISA-756; 7-27-2005).
On appeal, the DHS does not dispute the analogy of fiancé(e)s to immediate
relatives with regard to immigrant visa eligibility and availability. Rather, the
DHS would extend the analogy to include admissibility, arguing that the
dissolution of the qualifying marriage results in an alien’s inadmissibility for
section 245(a) adjustment, as would be the case for immediate relatives. See
Matter of Bark, 14 I&N Dec. 237. Yet, the fiancé(e)’s adjustment application
is and has always been predicated on the nonimmigrant I-129F visa petition.
Further, there is no requirement for a Form I-130 immigrant visa petition to
be filed under section 204 of the Act for the fiancé(e), as is the case for
family-based immigrants, including spouses admitted under section
101(a)(15)(K)(ii) of the Act. The regulations define different events as
terminating these respective petitions. The regulation at 8 C.F.R. § 205.1(a)(3)
provides that an I-130 immigrant visa petition is automatically revoked if the
marriage is legally terminated “before the decision on his or her adjustment
application becomes final.” In contrast, under 8 C.F.R. § 214.2(k)(5) (2010),
the I-129F nonimmigrant petition is automatically terminated if the petitioner
dies or files a written withdrawal of the petition before the beneficiary arrives
in the United States. There is no mention in the regulations of the
consequences of a valid marriage being terminated.9
This distinction makes sense when we consider the time when the fiancé(e)
visa holder, as opposed to an immigrant visa holder, satisfies the requirementsCite as 25 I&N Dec. 431 (BIA 2011) Interim Decision #3707
440
for section 245(a) adjustment. In our view, the section 245(a) eligibility
requirements are satisfied at the time the fiancé(e) is admitted to the United
States on the K-1 visa, conditioned on a subsequent, timely marriage to the
fiancé(e) petitioner. The date of admission best marks visa eligibility and
availability, because events that may occur between visa issuance and
admission could extinguish the visa under 8 C.F.R. § 214.2(k)(5). Further,
visa eligibility remains subject to reexamination by the inspecting officer at the
port of entry when the fiancé(e) seeks admission.
Thus, the fiancé(e) visa holder is not precluded from adjusting by the terms
of section 245(a) or the applicable regulations—even if a marriage that was
timely and bona fide no longer exists—if he or she is not otherwise
inadmissible under section 212(a) of the Act, 8 U.S.C. § 1182(a) (2006), and
merits a grant of adjustment in the exercise of discretion. The fiancé(e) must
still demonstrate the underlying bona fides of the qualifying marriage. See,
e.g., Matter of Boromand, 17 I&N Dec. 450 (BIA 1980) (holding that a
marriage that is valid at inception is valid for immigration purposes, even if the
parties are separated and the marriage is no longer viable); see also Bark
v. INS, 511 F.2d 1200 (finding that the conduct of the parties after marriage is
relevant only to the extent it bears upon their subjective state of mind at the
time they were married).
B. Fiancé(e) Adjustment Conditioned by Section 245(d) of the Act
In addition to examining the respondent’s eligibility to adjust under section
245(a), we must also interpret and apply the requirements of section 245(d).
The statutory language of section 245(d) places two requirements on fiancé(e)
adjustment applicants. First, fiancé(e)s may not adjust except on a conditional
basis under section 216 of the Act. Second, they can only adjust based on the
marriage to the fiancé(e) petitioner.
After the enactment of the IMFA, the INS General Counsel examined the
question whether a fiancé(e) would be subject to conditional resident status if
the adjustment application was filed within 2 years of the marriage to the
fiancé(e) petitioner, but the application was not adjudicated until more than
2 years after the marriage. The INS General Counsel interpreted section
245(d) of the Act to allow a fiancé(e) whose valid marriage was more than
2 years old to adjust status without the section 216 conditions, provided the
fiancé(e)’s adjustment application was filed within 2 years of the qualifying
marriage. See Genco Op. No. 93-39, 1993 WL 1503986 (INS) (finding that
alien spouses could adjust status unconditionally if, at the time of adjustment,
the marriage to the United States citizen was more than 2 years old). The
General Counsel opined that if the marriage is over 2 years old and bona fide,Cite as 25 I&N Dec. 431 (BIA 2011) Interim Decision #3707
441
the legislative intent underlying the creation of conditional resident status is
satisfied, so that there is no need for conditional status. Id.
We agree with this interpretation and conclude that the DHS has adopted a
reasonable construction of potentially conflicting statutory directions. There
is some tension between the seemingly mandatory terms of section 245(d)
regarding the application of section 216 to fiancé(e)s and the definitional terms
of section 216(g), which provides that adjustment applicants, including
fiancé(e)s, are subject to the conditions only if the qualifying marriage is less
than 2 years old at the time of adjustment. It is difficult to interpret 245(d) as
applying to fiancé(e) adjustment applicants outside the 2-year time period in
light of section 216(g)(1)(B), which provides that fiancé(e)s are subject to
section 216 “by virtue of a marriage which was entered into less than
24 months before the date the alien” obtains status as an alien lawfully
admitted for permanent residence.
The language of section 245(d) is also unclear about whether the marriage to
the fiancé(e) petitioner must exist on the date of adjudication or whether the
fact that a valid marriage once existed is sufficient. The statutory and
regulatory language does not prohibit adjustments based on a valid marriage
that is no longer intact, unlike other categories of family-based spouses,
including those under section 101(a)(15)(K)(ii) of the Act.
C. Summary of Fiancé(e)’s Eligibility for Adjustment Under
Sections 245(a) and (d) of the Act
We determine that a fiancé(e) visa holder is eligible to adjust under section
245(a) of the Act if, at the time of adjustment, the applicant can demonstrate
that he or she entered into a valid marriage to the fiancé(e) petitioner within
the 90-day period, provided that the requirements of section 216 do not apply.
The statute does not require that the marriage exist at the time that the
application is adjudicated outside the section 216 time frame. Also, a divorce
before adjustment does not terminate the underlying I-129F petition. Like
other adjustment applicants, the fiancé(e) must establish that he or she is
admissible to the United States and that adjustment should be granted in the
exercise of discretion.
Historically, the fiancé(e) was admitted pursuant to a nonimmigrant visa
petition that was processed like an immigrant visa petition and could adjust if
he or she entered into a bona fide marriage within 90 days and was not
otherwise inadmissible. We find nothing in the IMFA’s insertion of fiancé(e)
adjustment into the section 245 adjustment scheme to alter this process,
beyond explicitly adding both the section 216 requirements and a discretionary
element and limiting the avenue to adjustment to the fiancé(e) petition. Cite as 25 I&N Dec. 431 (BIA 2011) Interim Decision #3707
442
Our interpretation is further supported by the legislative history of the IMFA.
The Senate Report specifically states that the IMFA was introduced to prevent
marriage fraud and to preclude the easy entry of “mail order brides” into the
United States. See S. Rep. No. 99-491, at 2, 9. In practice, a fiancé(e)’s
marriage is evaluated for fraud more often than the marriage of other alien
spouses. The fiancé(e) and the United States citizen must establish their bona
fide intent to marry when the I-129 is filed, when the fiancé(e) applies for the
K-1 nonimmigrant visa, and when the fiancé(e) applies for admission to the
United States. In addition, they must establish the marriage is bona fide when
the fiancé(e) applies for adjustment of status and, if subject to section 216
conditional residence, when he or she petitions to waive the conditions on
residence. Finally, the fiancé(e) must establish that he or she deserves a grant
of adjustment in discretion. The fiancé(e) adjustment applicant can only adjust
on the basis of the marriage to the fiancé(e) petitioner. Unlike other categories
of adjustment applicants, who can adjust through another family relationship
or an employer, there is no other option for the fiancé(e). Given these
requirements, we believe that our resolution of this issue comports with the
concerns about ensuring that only those applicants who entered into a
bona fide marriage can adjust.
VI. FEDERAL COURT INTERPRETATION
Our conclusions regarding fiancé(e) adjustment are consistent with the
reasoning employed by at least two Federal courts of appeals. In Choin
v. Mukasey, 537 F.3d 1116 (9th Cir. 2008), the fiancée was admitted to the
United States on a K-1 visa, married her United States citizen fiancé within
90 days, and filed her adjustment application within the conditional residence
period. By the time the USCIS adjudicated the adjustment application more
than 2 years later, she had divorced the fiancé petitioner. The court framed the
issue as “whether Choin’s divorce after over two years of marriage made her
ineligible to adjust to conditional permanent resident.” Id. at 1119.
According to the Ninth Circuit, the language of section 245(d) of the Act
providing that a fiancé(e) cannot adjust status except on a conditional basis
pursuant to section 216 of the Act “as the result of the marriage” is ambiguous.
Id. at 1119-20. The court found that the phrase “as the result of the marriage”
could be interpreted two ways. It could mean that fiancé(e)s cannot adjust if
they are no longer married at the time the adjustment application is
adjudicated. Or it could mean that they could adjust even if no longer married,
so long as the adjustment application is premised on the marriage to the
fiancé(e) petitioner.
The court examined the purpose and context of section 245(d) of the Act and
determined that the latter interpretation was correct. The court found “nothingCite as 25 I&N Dec. 431 (BIA 2011) Interim Decision #3707
443
in the plain language of § 245(d) suggesting that an application that was valid
when submitted should be automatically invalid when the [fiancé(e)’s]
marriage ends by divorce two years later.” Id. at 1121. The court concluded
that to require the marriage to remain in existence until the adjustment
application is adjudicated is to read a “durational requirement” into the
qualifying marriage. Id. Therefore, Choin was eligible for adjustment under
section 245(d) even though she was no longer married to the fiancé petitioner
at the time her adjustment application was adjudicated. Id. at 1120-21.
In Carpio v. Holder, 592 F.3d 1091 (10th Cir. 2010), the Tenth Circuit
adopted the Choin analysis. Carpio involved a child accompanying or
following to join the fiancée visa holder. At the time Carpio was admitted to
the United States on a K-2 visa, he was under 21 years old. His mother timely
married the fiancé petitioner. The USCIS did not complete adjudication of his
adjustment application until more than 2 years after it was filed, when Carpio
was over 21 and no longer qualified as a child. In rejecting the date the
adjustment application was adjudicated as determinative of the child’s age for
adjustment eligibility, the court found the Ninth Circuit’s reasoning in Choin
to be “equally applicable.” Id. at 1101.
VII. DISCRETIONARY FACTORS FOR K-1 ADJUSTMENT
APPLICATIONS
In making discretionary determinations, we balance the equities and the
adverse factors presented to decide whether an alien merits a favorable
exercise of discretion. See Matter of A-M-, 25 I&N Dec. 66, 76-77 (BIA 2009)
(stating that the discretionary factors considered should be relevant to the
nature and purpose of the specific application at issue). In Matter of Arai,
13 I&N Dec. 494, 495-96 (BIA 1974), which addressed general discretionary
factors applicable to adjustment of status, we observed that “[i]t is difficult and
probably inadvisable to set up restrictive guide lines for the exercise of
discretion. Problems which may arise in applications for adjustment must of
necessity be resolved on an individual basis.” The “extraordinary
discretionary relief” of adjustment “can only be granted in meritorious cases.”
Matter of Blas, 15 I&N Dec. 626, 630 (BIA 1974; A.G. 1976). Immigration
Judges and this Board have wide latitude in addressing discretion. See
generally INS v. Yueh-Shaio Yang, 519 U.S. 26, 30 (1996) (stating that
statutory language establishing certain prerequisites to eligibility does not
impose limitations on the factors that may be considered in determining who
should be granted discretionary relief).
Aliens seeking adjustment under section 245(a), conditioned by section
245(d), do so based on the marriage to a fiancé(e) petitioner. The mere fact
that the marriage has been terminated is not automatically an adverse factorCite as 25 I&N Dec. 431 (BIA 2011) Interim Decision #3707
444
and is not so considered unless circumstances surrounding that marriage
indicate otherwise. In particular, reasons for the divorce and subsequent
developments involving that relationship could be unfavorable if, for example,
abuse or deception occurred or, where children are involved, parental
obligations have not been met. Issues about the validity of the qualifying
marriage are also relevant to the exercise of discretion, and the fact of the
divorce and its timing may raise questions about the bona fides of that
marriage.
The record before us does not contain any negative implications about the
respondent’s marriage to the fiancée petitioner. He is now married to another
United States citizen. The nature and quality of that relationship, even though
it is another marriage, is a relevant consideration in discretion, just as are any
other pertinent facts that exist at the time of adjustment.
VIII. CONCLUSION
The respondent completed the required steps in the fiancé adjustment
process. He was not subject to the provisions of section 216 because his
marriage was more than 2 years old when his adjustment application was
adjudicated. He established his prima facie eligibility for adjustment of status
based on his marriage to the fiancée petitioner. The respondent seeks to renew
his adjustment application premised on his first marriage, which the INS
improperly denied. Based on our interpretation of the relevant statutory
provisions and regulations, we conclude that the respondent’s divorce from the
fiancée petitioner does not render him ineligible for adjustment of status under
sections 245(a) and (d) of the Act. Accordingly, we will sustain the
respondent’s appeal and remand the record to give him an opportunity to
renew his application for adjustment of status before the Immigration Judge.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge for
further proceedings consistent with the foregoing opinion and for the entry of
a new decision.