Thursday, April 7, 2011

Matter of Sesay: K-1 Adjustment Possible Even After Divorce (In Some Cases)

In Matter of Sesay, 25 I&N Dec. 431 (BIA 2011), the Board of Immigration Appeals (BIA) held that a K-1 fiance can adjust status even if the marriage to the U.S. petitioner does not exist at the time that the adjustment application is adjudicated, if the applicant can demonstrate that the marriage was bonafide and done within the required 90-day period.  The BIA also held that: 
  1. A K-1 visa holder can only adjust status based on the marriage to the K-1 petitioner.
  2. A K-1 visa holder whose bonafide marriage to the K-1 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.
The respondent in this case, a native and citizen of Sierra Leone, was admitted to the United States in April 2000 as a K-1 non-immigrant.  He married and filed an application for adjustment of status which was later denied. The couple divorced on June 5, 2003 and later that year the respondent was placed in removal proceedings. In 2004, the respondent married his second wife, who filed an immediate relative visa petition (I-130) on his behalf.

In removal proceedings, the respondent renewed his adjustment application based on his I-129F fiancé petition. He also filed an adjustment application premised on the I-130 petition filed by his current wife. The Immigration Judge denied both adjustment applications, finding that he had no jurisdiction to adjudicate the adjustment application based on the respondent’s first marriage because it was no longer in existence. The Immigration Judge denied the I-130 adjustment application because the respondent had been admitted on a fiancé visa and therefore could only adjust based on the I-129F petition.

The BIA concluded that the respondent had completed the required steps in the fiancé adjustment process and that he was not subject to the provisions of section 216 of the Immigration and Nationality Act (INA) because his marriage was more than 2 years old when his adjustment application was adjudicated. Accordingly, the Board found that his divorce did not render him ineligible for adjustment of status and remanded the record for consideration of his application as a matter of discretion.