Noncitizens who enter the United States on a K-1 fiance visa may retain their residency rights as two cases in the Ninth Circuit Court of Appeals have recently upheld. The Immigration and Naturalization Service (INS) has held that K-1 fiance visa holders can only adjust their status to permanent resident if their marriage is still intact at the time of adjustment.
This understanding is in line with the Immigration Marriage Fraud Act of 1986, which was enacted to prevent fraudulent marriage-based immigrants. But the Ninth Circuit Court said that the statute does not change the need for a lasting marriage, but interprets that marriage is entered in "good faith".
Jelena Choiniere the United States with a visa to marry her boyfriend Mr. Albert Tapia K -1. After being married, Choiniere has submitted an application to change their permanent resident status with the INS.
In the two years that ChoiniereApplication idled in the bureaucracy of the INS, and divorced Choiniere Tapia. The INS denied the application Choiniere then why are not married at the time of adjustment and the sentence was set to be removed from Homeland Security.
Similarly Natalya Strokous woman arrived in the U.S. with a visa to marry her boyfriend K -1 Borus Mr. Bengel. They divorced Strokous first submitted their application was on his permanent change of residence due to his marriage to Bengel.Because she had not filed her application before their divorce, the initial court denied her application and ordered her removal from the United States.
But the Ninth Circuit Court has responded that the statute does not outline a duration for the marriage requirement but rather interpreted that the marriage be entered into in "good faith." The Ninth Circuit Court ruled that no duration for marriage was stipulated in the statute.
As long as the marriage contract was entered into in good faith and the application for status adjustment had been filed, the Court ruled that marriage at the time of the ruling in Choin's case was irrelevant. Based upon Choin's case, the Ninth Circuit Court upheld that even though Strokous had filed to adjust her status after her divorce, the Court ruled that even if a marriage ends in divorce. It in no way implies that the marriage was not entered in in good faith.
This is good news and legal recourse for immigrants who have attained legal status as a result of a K-1 fiancé visa and wish to retain legal rights within the United States after a marriage ends in divorce [http://www.totaldivorce.com].
No duration for marriage is outlined so long as the Court interprets that indeed it was entered into in good faith. The boundaries for a Court's interpretation are certainly fuzzy in terms of assessing "good faith," but legal precedent has been established that immigrants under K-1 fiancé visas may attain legal permanent residency after their marriage ends in divorce regardless if the INS has approved the application for permanent residency.
This is good news for immigrants who enter into good faith marriages though it does open the possibility for fraudulent immigrant-based marriage, the motive behind the Immigration Marriage Fraud Act.
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