Wednesday, March 23, 2011

BIA says K-1 visa holders remain eligble to adjust status despite subsequent termination of marriage.

On March 17, the BIA handed down an important decision of K-1 fiancĂ©e visa holders.  In Matter of Sesay, 25 I&N Dec. 431 (BIA 2011), the BIA held that an alien who enters the United States on a K-1 visa and timely enters into a bona fide marriage with the petitioning spouse, remains eligible to adjust status under INA §245(a) even if the marriage later terminates. 

The K-1 visa category allows an immigrant to enter the U.S. in order to marry his or her U.S. citizen fiancĂ©(e).  The marriage must take place within 90 days of entry.  At that point the K-1 may adjust to conditional permanent resident status.  The conditional nature of the status is removed approximately two years later.  The catch is that K-1's can only adjust status on the basis of their marriage to the U.S. citizen spouse. 

Before the BIA's decision in Matter of Sesay, when a K-1's  marriage ended before filing to adjust status or while the adjustment of status was pending, the K-1 simply lost all rights to permanent resident status.  The simple formula was: No marriage = No adjustment.  With no alternatives available to adjust status, the K-1 was forced to return to his or her home country.  The BIA's decision in Matter of Sesay changed this rule substantially.  Now, where the K-1 enters into a bona fide marriage within the 90 day window ofter entry, the K-1 remains eligible to adjust status even if the marriage is terminated. 

Read the opinion here.

Tuesday, March 15, 2011

Deportations to Haiti Resume

In light of the earthquake in Japan, this post revisits another earthquake ravaged nation and its ongoing relationship to U.S. Immigration Policy.

One of the poorest countries in the world, Haiti was struck by a catastrophic quake on January 12, 2010.  In the days after the disaster, the U.S. Government announced it was halting deportations to the country. In January of 2011, the U.S. Government resumed deportations to Haiti.  DHS plans to deport some 700 persons back to the country this year.

Immigration advocates and those facing deportation to Haiti have pleaded for a halt to the deportations, citing “inhumane conditions” in Haiti.  A cholera epidemic reportedly has killed more than 4,000 people since October. One of the 26 detainees sent to Haiti in the first wave of the resumed deportations was Wildrick Guerrier.  Upon his return, he suffered choleralike symptoms and later died.  Before being deported, he had participated in a hunger strike and stated that deportation to Haiti amounted to a death sentence.

U.S. Immigrations and Customs Enforcement is currently seeking feedback on its resumed deportation policy.  The new draft policy was posted on March 7, 2011.  The document, which is the first written policy issued regarding the resumption of deportations to Haiti, comes three months after DHS announced its plan to resume deportations and more than six weeks after deportations actually began.

Read an article regrading the deportations here.
Read an article regarding the earthquake here.
Read the draft policy here.

Saturday, March 5, 2011

Long Awaited DHS Report Released

Prince William County filed suit against the Department of Homeland Security ("DHS") on Tuesday over its refusal to provide information regarding Carlos Martinelly-Montano, an illegal immigrant charged with killing a nun in a alcohol related car crash last August.

DHS claimed that it could not release the information requested due to Immigration and Customs Enforcement privacy policies.

On Friday, however, DHS released a report of ICE's Inquiry into the matter to Judicial Watch, a conservative watchdog group, who along with others, also sued the DHS under the Freedom of Information Act.  The report indicates that Mr. Martinelly-Montano had been released by immigration authorities while awaiting deportation because he had demonstrated that he was not a flight risk.

View the Report here.
Read Washington Post Article here.
Read Washington Examiner Blog Post here.