San Diego Immigration Lawyer – Marriage Based I-485 Approval Even after Divorce

Most of our readers are aware that any adjustment of status in a family based petition can not be approved if the relationship is no longer viable. Yet there are certain exceptions from time to time. On August 12, 2008, in Choin v. Mukasey, the U.S. Court of Appeals for the Ninth Circuit ordered the Board of Immigration Appeals (BIA) to consider Ms. Choin’s Form I-485 Application for Adjustment of Status based upon marriage, even though she was no longer married to her U.S.-citizen husband.

The Court found an exception to this for spouses who enter the U.S. on the K-1 fiancé/e visa. This interpretation is limited to a K-1 fiancé/e of a U.S. citizen. There is a specific section of law that addresses the adjustment of status of K-1s and it is the wording of that section that led to the conclusion reached by the Court.

The Court’s opinion was based on the language and interpretation of Section 245(d) of the Immigration and Nationality Act (INA). This section specifies that a foreign national who enters the U.S. in K-1 status can only adjust to conditional LPR status (and not regular LPR status) by filing an I-485 application based on marriage to the U.S.-citizen sponsor of the K-1. Conditional LPR status is valid for two years, unless the conditions are removed based upon the filing of an application to remove the conditions.

The Court explained that Congress passed the law regarding conditional permanent resident status in order to discourage and prevent marriage fraud. Congress created a special requirement that a Conditional LPR file an Application to Remove the Conditions (I-751) within set timeframes. The law allows a Conditional LPR to file the I-751 without the U.S. citizen, if divorced, based upon proof that the marriage was entered into in good faith. The Court found this exception to the I-751 joint filing requirement as allowing its generous reading of Section 245(d) when the same standard could also be applied to the initial stage of filing the I-485 application. It ruled that Ms. Choin is still eligible for approval of her I-485 and ordered the BIA to process her case consistently with its ruling.