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DEATH AND DIVORCE NEED NOT LEAD TO DENIAL: OBTAINING AN ADJUSTMENT OF STATUS APPROVAL AFTER YOU DIVORCE OR YOUR SPOUSE DIES
By the Immigration Attorneys at Smith & Garg, PC, serving The Woodlands, Spring, Houston, Conroe, Humble, Kingwood, Cypress, Huntsville, Los Angeles, Long Beach, and Orange County
In the immigration world, tragedy often strikes twice. I refer to cases where an initially happy marriage to a U.S. citizen ends by divorce or death of a spouse before a green card application (an application for adjustment of status) is approved. In the past, many intending immigrants falling into such situations have received denials and have been forced to leave the United States. Fortunately, there are some situations where divorce or death may not terminate the adjustment of status process.
Death of a Spouse
It is the USCIS’ opinion that divorce or the death of a spouse will terminate an application for adjustment of status that was filed based on the marital relationship. The USCIS Adjudicator’s Field Manual instructs officers as follows:
“If the petition is based on a marital relationship, question the party or parties sufficiently to satisfy yourself that the relationship continues to exist. If it has been terminated through annulment, divorce, or death, revoke the petition.” (Emphasis added”).
USCIS Field Manual 23.5(d).
Fortunately, there is hope in the judicial sector. In Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006), the Ninth Circuit Court of Appeals ruled that the spouse of a U.S. citizen does not automatically lose status as a spouse when the citizen spouse dies during the adjustment of status application process. In the case, the beneficiary came to the United States on a visa waiver. While in the United States, she married a U.S. citizen. Her husband, Mr. Freeman, filed an immediate relative petition (I-130) in her behalf and Mrs. Freeman filed an application for adjustment of status. Unfortunately, Mr. Freeman was killed in a tragic automobile accident just before the couple’s first wedding anniversary. |
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The Freeman Court addressed many issues, including whether a person’s status as a “spouse” is automatically terminated by the death of the U.S. petitioner in a marriage case. The Court found that Congress “intended an alien widow whose citizen spouse has filed the necessary forms to be and to remain an immediate relative (spouse) for purposes of” the applicable statute, “even if the citizen spouse dies . . . .” Id.
The Freeman ruling is the law in the Ninth Circuit, but in other jurisdictions, the USCIS has not acquiesced in its holding. The USCIS is fighting several cases around the nation dealing with the Freeman issue.
Divorce
While Freeman has reshaped the discussion of widow/widower cases, a new case is shaking up the immigration world in regard to the issue of divorce during a pending adjustment of status application. In Choin v. Mukasay, No.s 07-70941 and 06-75823 (9th Cir.) (August 12, 2008), Yelena Choin, a Russian citizen, came to the United States on a K-1 fiancée petition. As required under a K-1 regulations, she married her fiancée within 90 days of entering the United States. She then filed an application for adjustment of status. Less than two years after the marriage, and before her adjustment of status interview, she divorced. The government found her ineligible for adjustment of status and ordered her deported; however, the Ninth Circuit found nothing in the plain language of the applicable statutes to warrant an automatic denial of her application. Thus, the Court cleared the way for her to seek an approval of her application for adjustment of status.
Conclusion
Because the USCIS does not agree with Freeman and Choin, it will litigate cases involving the divorce and death issues found in the two cases. It is very possible that these issues may eventually be resolved by the Supreme Court. For now, Freeman and Choin at least help advance the argument that death or divorce should not automatically terminate an adjustment of status application based on marriage. Smith & Garg, PC immigration lawyers will gladly advocate for your rights if you find yourself in a situation discussed in this article. Our immigration attorneys have extensive experience with family and business immigration matters.
This article does not discuss I-360 widow/widower cases. A widow may be permitted to self-petition for an immigrant visa under the following conditions: 1. The person was married at least two years to a U.S. citizen who is deceased but was a U.S. citizen at the time of death. 2. The death occurred less than two years before the I-360 petition is filed. 3. The couple was not legally separated at the time of death. 4. The widow/widower has not remarried.
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