Can fiancée get green card through another petitioner?

by Atty. Emmanuel Samonte Tipon

The only French word that most aliens know besides Chevrolet is fiancé (male) or fiancée (female). They know that being a fiancee (we will extol the women) is the fastest way to come to America and get a green card. Can the alien fiancée obtain a green card through a petitioner other than the one who filed the fiancée visa petition?

PETITIONER DIES BEFORE FIANCEE ARRIVES

Lubelyn of Banna, Ilocos Norte was petitioned as a fiancée by a U.S. citizen. When Lubelyn arrived in America, her petitioner did not meet her. He was killed before she arrived. Instead of a wedding, she attended a funeral. She married another man. The husband filed a relative visa petition for her and she filed an application for adjustment of status (AOS). The couple had a child. INS denied her application because she had no status on arrival. She was no longer a fiancée as her petitioner had died before her arrival. She fought all the way to the Court of Appeals. The CA affirmed the denial. She went back to the Philippines. We met Lubelyn’s daughter a few years ago. We said that her mother could have been saved from deportation if she had simply gotten a new fiance and return to the Philippines to await a fiancee visa petition  or to marry the guy and then return to the Philippines to await a relative visa petition. Caddali v. INS, 975 F.2d 1428 (9th Cir. 1992).

PETITIONER DOES NOT MARRY FIANCEE

In some cases, the petitioner changes his mind and refuses to marry the fiancée upon arrival. What now, my love? The fiancée could continue to use friendly persuasion to get the petitioner to the altar. Meanwhile, the fiancée should earnestly be looking around for another man, instead of bemoaning her misfortune.  When she finds another man, they should get married, and return to the home land to await the visa petition by the husband, or instead of marrying the new man, become fiancé-fiancee, return to her native land to await a fiancée visa petition. The fiancée should not remain in the United States beyond the period of time given by immigration authorities.

USCIS DENIES ADJUSTMENT OF STATUS

If the fiance-fiancee marry within the 90-day period, file an AOS application, but USCIS denies the AOS, what then? The couple may file another AOS application immediately instead of waiting for the inevitable deportation proceedings against the fiancée. It is possible but unlikely that a motion for reconsideration or reopening will succeed, unless there is new solid evidence to warrant it.

A fiancé married his petitioner and filed an AOS application.  USCIS denied it on the mistaken ground that USCIS had not adjudicated the application within 2 years of the marriage. The couple divorced. He was placed in removal proceedings. He married another USC who filed a relative visa petition for him. At the hearing, he conceded that he could not use the visa petition by his second wife as a basis for obtaining a green card. The IJ ordered his deportation.

The Board of Immigration Appeals (BIA) held that a fiancé visa holder can only adjust status based on the marriage to the fiancee visa petitioner. BIA said that he could renew his AOS application based on his marriage to the fiancée petitioner (his first wife). Matter of Sesay, 25 I&N Dec. 431 (BIA 2011).

USCIS TERMINATES CONDITIONAL RESIDENCE

A fiance married his petitioner and adjusted his status to that of a conditional lawful permanent resident. The couple divorced. He filed a petition to remove the conditions on his residency, seeking a waiver of the joint filing requirement on the basis that he had entered into a good faith marriage. DHS denied the request because he failed to prove the bona fides of the marriage. Removal proceedings commenced. His USC daughter filed a visa petition for him which was approved. He filed an AOS application. The court held that a fiancé is not eligible to adjust his status to lawful permanent resident on any basis other than marriage to his fiancé petitioner (his ex-wife). Caraballo-Tavera v. Holder, No. 11-2517-ag, 06 18 12 (2nd Cir. 2012).

RECOMMENDATION: Hire an excellent lawyer who knows what to do at the first sign of trouble with your fiance/fiancee petitioner.


(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. He writes law books. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website: MilitaryandCriminalLaw.com.  When in Hawaii, listen to the most witty, interesting, and informative radio program on KNDI at 1270, AM dial every Thursday at 7:30 a.m., rebroadcast world wide at www.iluko.com. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication.)