Choosing between K-1 and immigrating as a spouse
Jul 28th 2008, 4:15 am
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Choosing between K-1 and immigrating as a spouse
I just read an interesting bit in Carl Shusterman's newsletter (immigration attorney). I don't have a link, this comes to me by email, but this is only a small part of the whole newsletter, hopefully ok for copyright. Mods, if there is any problem, could you please delete that latter parts rather than the first (key) bit. 
While he does say apparently there are some suggestions, this is a general rule which I think could be a very significant reason to choose a K-1 rather than immigrate as a spouse, if there was any reason the application might be questionable
From Mr. Shusterman:
Generally, the decision of a consular officer to deny either an immigrant (permanent) or a nonimmigrant (temporary) visa cannot be challenged in the Federal Courts. This is known as the doctrine of "consular nonreviewability". For this reason, we usually advise our clients to adjust their status in the U.S. rather than seek immigrant visas abroad. Persons who are denied adjustment of status may submit a motion to reopen or reconsider the decision, or if they are placed in removal proceedings, they may renew their applications before an Immigration Judge and, if necessary, have the opportunity to present their case before the Board of Immigration Appeals. Persons who elect to go abroad to obtain their immigrant visas usually have no such rights.
However, the doctrine of consular nonreviewability is not without exceptions.
Recently, the U.S. Court of Appeals for the 9th Circuit joined the 1st, 2nd and D.C. Circuits in holding that under the Supreme Court holding in Kleindienst v. Mandel, 408 U.S. 753 (1972), "a U.S. citizen raising a constitutional challenge to the denial of a visa is entitled to a limited judicial inquiry regarding the reason for the decision." Bustamente v. Mukasey, No. 06-17228 (9th Circuit, July 9, 2008).
The Court held that
"Here, Alma Bustamante asserts that she has a protected liberty interest in her marriage that gives rise to a right to constitutionally adequate procedures in the adjudication of her husband's visa application. The Supreme Court has deemed "straightforward" the notion that "[t]he Due Process Clause provides that certain substantive rights - life, liberty, and property - cannot be deprived except pursuant to constitutionally adequate procedures."
While he does say apparently there are some suggestions, this is a general rule which I think could be a very significant reason to choose a K-1 rather than immigrate as a spouse, if there was any reason the application might be questionable
From Mr. Shusterman:
Generally, the decision of a consular officer to deny either an immigrant (permanent) or a nonimmigrant (temporary) visa cannot be challenged in the Federal Courts. This is known as the doctrine of "consular nonreviewability". For this reason, we usually advise our clients to adjust their status in the U.S. rather than seek immigrant visas abroad. Persons who are denied adjustment of status may submit a motion to reopen or reconsider the decision, or if they are placed in removal proceedings, they may renew their applications before an Immigration Judge and, if necessary, have the opportunity to present their case before the Board of Immigration Appeals. Persons who elect to go abroad to obtain their immigrant visas usually have no such rights.
However, the doctrine of consular nonreviewability is not without exceptions.
Recently, the U.S. Court of Appeals for the 9th Circuit joined the 1st, 2nd and D.C. Circuits in holding that under the Supreme Court holding in Kleindienst v. Mandel, 408 U.S. 753 (1972), "a U.S. citizen raising a constitutional challenge to the denial of a visa is entitled to a limited judicial inquiry regarding the reason for the decision." Bustamente v. Mukasey, No. 06-17228 (9th Circuit, July 9, 2008).
The Court held that
"Here, Alma Bustamante asserts that she has a protected liberty interest in her marriage that gives rise to a right to constitutionally adequate procedures in the adjudication of her husband's visa application. The Supreme Court has deemed "straightforward" the notion that "[t]he Due Process Clause provides that certain substantive rights - life, liberty, and property - cannot be deprived except pursuant to constitutionally adequate procedures."
