K-1's right to self-petition to adjust status upon divorce from initial petitioner

[diadromous mermaid 36]

http://www.shusterman.com/pdf/choin.pdf

[TBoneTX 45,288]

Fascinating indeed. How far-reaching is this decision, if it has impact beyond the case to which it applies? How recent is the decision -- this year, or the 12 August 2008 date of the filing?

[Chica Yeyé 41]

thanks sister mermaid.

[Nagishkaw 510]

thanks sister mermaid.

I second that. Thank you!

[diadromous mermaid 36]

I don't know how recent, perhaps January 2009. How far reaching? Well, it is one court's approach but certainly one I would cite if I found myself in a similar jam.

Fascinating indeed. How far-reaching is this decision, if it has impact beyond the case to which it applies? How recent is the decision -- this year, or the 12 August 2008 date of the filing?

[Kathryn41 3,205]

Interesting. The USCIS seems to have problems interpreting some of their own poorly written documents as well, let alone the law, and we have all commented on the atrociously written, often times ambiguous notices that are sent out. It is good to see some one taking them to task about their lack of attention to details. I loved the use of the word 'languishing' when it referred to files waiting for adjudication.

Edited February 21, 2009 by Kathryn41

[supercomp 0]

Interesting. The USCIS seems to have problems interpreting some of their own poorly written documents as well, let alone the law, and we have all commented on the atrociously written, often times ambiguous notices that are sent out. It is good to see some one taking them to task about their lack of attention to details. I loved the use of the word 'languishing' when it referred to files waiting for adjudication.

That may be the case. But it is pretty clear that K1/K3 applicant are not eligible to adjust their status to permanant residents unless they do it through original petitioner. It is unfortunate that it took 2.5 years in the case above for USCIS to process her application, but rules are rules and must be followed.

If USCIS bend rules in one case, they would be forced to bend them in all cases. This K1/K3 requirement regarding adjusting status was enacted to prevent immigration fraud. If it weren't present, there would be flood of people on K1 (financee visa) coming to USA then "deciding" to marry someone else. Rules are made for reason and based on past experience with immigration fraud.

[diadromous mermaid 36]

I believe what is at issue, or what was being questioned in this case was the INA's meaning of the expression "as a result of a marriage to a US citizen". This 9th Court case determined that the marriage occured, and therefore the alien met the requirements of the statute as ambiguously written as it is.

Interesting. The USCIS seems to have problems interpreting some of their own poorly written documents as well, let alone the law, and we have all commented on the atrociously written, often times ambiguous notices that are sent out. It is good to see some one taking them to task about their lack of attention to details. I loved the use of the word 'languishing' when it referred to files waiting for adjudication.

That may be the case. But it is pretty clear that K1/K3 applicant are not eligible to adjust their status to permanant residents unless they do it through original petitioner. It is unfortunate that it took 2.5 years in the case above for USCIS to process her application, but rules are rules and must be followed.

If USCIS bend rules in one case, they would be forced to bend them in all cases. This K1/K3 requirement regarding adjusting status was enacted to prevent immigration fraud. If it weren't present, there would be flood of people on K1 (financee visa) coming to USA then "deciding" to marry someone else. Rules are made for reason and based on past experience with immigration fraud.

[idocare 3]

Wow,

The laws and language in which they write and interpret them is leaving the door wide open for the green card marriage scam. I'm sickened by that whole case.

[lucyrich 20]

The title of this thread may be slightly misleading. It wasn't exactly a self-petition. The K-1 fiancee entered the US, married the petitioner within 90 days, and together they filed paperwork for adjustment of status promptly while they were married. The marriage was bona fide, and lasted more than two years. But that wasn't long enough. They divorced before the USCIS got around to looking at the adjustment of status.

If the circumstances had happened with today's timelines, chances are the adjustment of status would have been processed while they were married, and there would have been no question about granting adjustment of status. But it happened at a time of longer backlogs, and the question is whether the USCIS' arbitrarily long multi-year delays render the immigrant ineligible to adjust status because the marriage ended before the USCIS got around to looking at the paperwork.

I would have guessed that the immigrant was ineligible for adjustment of status, but I can understand the court's reasoning that the USCIS delays, especially when they're unreasonable multi-year delays, shouldn't be used to render an immigrant ineligible in a case where the immigrant would have been eligible under reasonably prompt processing.

Here's hoping this precedent becomes moot, because I hope backlogs never return to multi-year delays strictly for paperwork. If Congress decides to impose multi-year waits due to visa numbers and such, that's one thing, but the USCIS shouldn't be allowed to arbitrarily impose its own huge waits without authority.

[Eagleeye 1]

GOOD JOB diadromous mermaid'