Matter of Sothon SONG (BIA 2018)

Decided November 19, 2018
While it is true that a person who enters the United States on a fiancé(e) visa cannot adjust status under section 245(a) of the Immigration and Nationality Act on the basis of a different relationship, the immigrant can adjust status if he or she entered into the marriage within 90 days of entry to the United States as required, even if the marriage dissolves prior to the application.   This case, however, makes such an adjustment unlikely based on a technicality related to the affidavit of support requirement.  The BIA ruled that the original petitioner of the fiancé(e) visa – even if no longer married to the immigrant – must submit an affidavit of support for the case to proceed.  According to the court:

The respondent argues that we should follow our reasoning in Matter of Sesay, 25 I&N Dec. at 440–41, where we concluded that the K-1 visa holder could adjust his status despite his divorce from the petitioner if he was otherwise admissible. However, as we noted there, the regulations were silent regarding the consequences of the termination of a valid marriage. Id. at 439. By contrast, 8 C.F.R. § 213a.2(b)(1) affirmatively states that a fiancé(e) petitioner must be the person who files an affidavit of support on behalf of the K-1 visa holder. Further, the K-1 visa holder is inadmissible as a public charge if the petitioner declines to submit an affidavit of support or withdraws it before the alien’s adjustment application has been adjudicated. See section 212(a)(4)(C)(ii) of the Act; 8 C.F.R. § 213a.2(f). Because the language of both the statute and the regulations is plain and unambiguous, we are bound to follow it.

The court left open the possibility of adjustment, but only if an affidavit of support is submitted by the ex-spouse. If there is a friendly relationship between the immigrant and the ex-spouse, this may not be a problem.  However, if the petitioner ex-spouse does not want to assist the immigrant legalize, then the adjustment application cannot proceed.