death of spouse before adjustment interview
Aug 30th 2002, 7:01 am
#31
Guest
Posts: n/a
Re: death of spouse before adjustment interview
> What does this have to with your earlier statmeent about having a permanent
> ability to adjust status as a K-1. What do you mean by "permanent" ability to
> adjust status?
In the discussion of the decision, it demonstrates the pertinence of the
*contracting* of a valid marriage to the petitioner within 90 days of K1 admission as
the basis for applying for adjustment of status. These people did not contract a
marriage with 90 days of K1 entry. The existence of a current marriage to the
petitioner is not the basis for eligibility (as it is for an I-130 petition), so the
fact the U.S. citizen spouse died subsequent to the marriage does not affect his
eligibility to apply for adjustment. He can always apply so long as he is present in
the U.S. under a lawful entry. This is what I mean by "permanent ability to apply
for adjustment of status"; INS can't revoke a petition to prohibit him from applying
for adjustment because his application isn't based on a petition at all.
The alien can always apply for adjustment of status by himself at any time agter the
marriage to the petitioner is concluded; the U.S. citizen need not be any further
involved during the application, interview, or approval, so long as the alien shows
that the marriage was entered in good faith, is not likely to become a public charge,
and is otherwise admissible. Death of the citizen is a form of evidence that the
marriage was entered into in good faith. This is much the same as it is a perfectly
to submit a death certificate for waiver of the joint filing requirement to remove
conditions on permanent residence on Form I-751.
That's my opinion anyway; I'd go for it if I were him, probably with the assistance
of an immigration attorney to make sure all the facts are straight at the interview
to show a valid marriage and admissibility.
CP
> ability to adjust status as a K-1. What do you mean by "permanent" ability to
> adjust status?
In the discussion of the decision, it demonstrates the pertinence of the
*contracting* of a valid marriage to the petitioner within 90 days of K1 admission as
the basis for applying for adjustment of status. These people did not contract a
marriage with 90 days of K1 entry. The existence of a current marriage to the
petitioner is not the basis for eligibility (as it is for an I-130 petition), so the
fact the U.S. citizen spouse died subsequent to the marriage does not affect his
eligibility to apply for adjustment. He can always apply so long as he is present in
the U.S. under a lawful entry. This is what I mean by "permanent ability to apply
for adjustment of status"; INS can't revoke a petition to prohibit him from applying
for adjustment because his application isn't based on a petition at all.
The alien can always apply for adjustment of status by himself at any time agter the
marriage to the petitioner is concluded; the U.S. citizen need not be any further
involved during the application, interview, or approval, so long as the alien shows
that the marriage was entered in good faith, is not likely to become a public charge,
and is otherwise admissible. Death of the citizen is a form of evidence that the
marriage was entered into in good faith. This is much the same as it is a perfectly
to submit a death certificate for waiver of the joint filing requirement to remove
conditions on permanent residence on Form I-751.
That's my opinion anyway; I'd go for it if I were him, probably with the assistance
of an immigration attorney to make sure all the facts are straight at the interview
to show a valid marriage and admissibility.
CP
Aug 30th 2002, 8:48 am
#32
Guest
Posts: n/a
Re: death of spouse before adjustment interview
[email protected] (docsanjose) wrote in message
news:<[email protected]. com>...
> thanks so much for your valued suggestion. i think i must fight it out and leave
> the rest on destiny. but i wonder what should i do now? should i inform the INS or
> just wait for things to happen on their own? thanks
> >
An immigration lawyer speaks:
Your original posting mentioned you have an AOS pending. Go forward with the AOS.
BTW, take note of section 213A(f)(5)(B) which was added to the law on March 13, 2002.
This governs the situation where an I-130 petitioner dies before the AOS is
completed. By strict definition, it does not apply to you, but I think it helps.
Good luck.
news:<[email protected]. com>...
> thanks so much for your valued suggestion. i think i must fight it out and leave
> the rest on destiny. but i wonder what should i do now? should i inform the INS or
> just wait for things to happen on their own? thanks
> >
An immigration lawyer speaks:
Your original posting mentioned you have an AOS pending. Go forward with the AOS.
BTW, take note of section 213A(f)(5)(B) which was added to the law on March 13, 2002.
This governs the situation where an I-130 petitioner dies before the AOS is
completed. By strict definition, it does not apply to you, but I think it helps.
Good luck.
Aug 30th 2002, 1:42 pm
#33
Guest
Posts: n/a
Re: death of spouse before adjustment interview
> Your original posting mentioned you have an AOS pending. Go forward with the AOS.
> BTW, take note of section 213A(f)(5)(B) which was added to the law on March 13,
> 2002. This governs the situation where an I-130 petitioner dies before the AOS is
> completed. By strict definition, it does not apply to you, but I think it helps.
This refers to the Affidavit of Support, since his spouse no longer can provide it
but under this provision an in-law now can. I agree, this could be important for
him, particularly if the social security surviving spouse benefits do not bring his
household above the poverty level (quite possible). He should most certainly make
sure his immigration lawyer has identified a new, qualified sponsor for him so
adjustment is not denied on public charge grounds.
CP
> BTW, take note of section 213A(f)(5)(B) which was added to the law on March 13,
> 2002. This governs the situation where an I-130 petitioner dies before the AOS is
> completed. By strict definition, it does not apply to you, but I think it helps.
This refers to the Affidavit of Support, since his spouse no longer can provide it
but under this provision an in-law now can. I agree, this could be important for
him, particularly if the social security surviving spouse benefits do not bring his
household above the poverty level (quite possible). He should most certainly make
sure his immigration lawyer has identified a new, qualified sponsor for him so
adjustment is not denied on public charge grounds.
CP
Aug 30th 2002, 2:02 pm
#34
Guest
Posts: n/a
Re: death of spouse before adjustment interview
> I still don't see where it your post that says someone can adjust from K-1 if not
> still married. You showed a section about ineligibilty to adjust, if entering on
> another visa. Are you stating they have the ability to adjust even if no longer
> married to the sponsor?
I am saying you can *apply* for adjustment once you have married the U.S. petitioner
for your K1 visa. They can't stop you from applying. The fact the marriage has been
terminated, by divorce or by death, does not stop you from being able to apply for
adjustment. With I-130, they stop your ability to apply for adjustment by automatic
revokation of any approved petition upon termination of the marriage.
Approval of adjustment is another story. I-130 petitions are automatically revoked
when divorce or death of the petitioner occurs, so that renders the alien unable to
receive adjustment approval because there is no more petition. K1 adjustments are
different, however, because there is no petition and a marriage isn't something you
can revoke except by a finding of marriage fraud. Normally, divorce prior to a
marriage-based adjustment is strong evidence of marriage fraud. Death, however, is
not normally an indication of marriage fraud.
In fact, as I-751 points out, divorce also isn't necessarily an indication of
marriage fraud, and so it is theoretically possible for even a divorced K1 alien to
receive adjustment approval if they can successfully show the marriage was entered
into in good faith by the alien. I think, however, INS would still expect to see the
U.S. citizen spouse at the adjustment interview, and would be strongly inclined to
deny the application as a matter of discretion, or at least attempt to deny by
referring the case to the District Director or Associate Commissioner of Examinations
for final decision. Such a case might really need the immigration court and the BIA
to decide and set a precent, so they'd probably refer it that way.
CP
> still married. You showed a section about ineligibilty to adjust, if entering on
> another visa. Are you stating they have the ability to adjust even if no longer
> married to the sponsor?
I am saying you can *apply* for adjustment once you have married the U.S. petitioner
for your K1 visa. They can't stop you from applying. The fact the marriage has been
terminated, by divorce or by death, does not stop you from being able to apply for
adjustment. With I-130, they stop your ability to apply for adjustment by automatic
revokation of any approved petition upon termination of the marriage.
Approval of adjustment is another story. I-130 petitions are automatically revoked
when divorce or death of the petitioner occurs, so that renders the alien unable to
receive adjustment approval because there is no more petition. K1 adjustments are
different, however, because there is no petition and a marriage isn't something you
can revoke except by a finding of marriage fraud. Normally, divorce prior to a
marriage-based adjustment is strong evidence of marriage fraud. Death, however, is
not normally an indication of marriage fraud.
In fact, as I-751 points out, divorce also isn't necessarily an indication of
marriage fraud, and so it is theoretically possible for even a divorced K1 alien to
receive adjustment approval if they can successfully show the marriage was entered
into in good faith by the alien. I think, however, INS would still expect to see the
U.S. citizen spouse at the adjustment interview, and would be strongly inclined to
deny the application as a matter of discretion, or at least attempt to deny by
referring the case to the District Director or Associate Commissioner of Examinations
for final decision. Such a case might really need the immigration court and the BIA
to decide and set a precent, so they'd probably refer it that way.
CP
Aug 31st 2002, 1:07 am
#35
Guest
Posts: n/a
Re: death of spouse before adjustment interview
This is just opposite of the previous postings on the subject. My understanding was
that a K-1 could only be adjusted if still married or due to abuse.
that a K-1 could only be adjusted if still married or due to abuse.
Aug 31st 2002, 9:26 am
#36
Guest
Posts: n/a
Re: death of spouse before adjustment interview
i've hired an immigration attorney , according to him, i've all the evidence that i
entered marriage in good faith , but he said it'll be a tough fight as my spouse died
"before" the interview....so INS doesn't have any testimony of my wife concerning the
good faith in which marriage was held except that we had a child in our relationship
which is a very big point.... the more facts that go in my favour are that i married
within the 90 day period and filed within the 90 day period too....and i've loads of
pictures of our honeymoon and our wedding ceremony.....plus hundreds of emails and
letters from her written to me and vice verca......so if INS can deport me on the
clause of "bad intent" at the time of marriage,then there's not a single point that
goes against me....but if there's another law which makes me deportable, then that's
a different story......
entered marriage in good faith , but he said it'll be a tough fight as my spouse died
"before" the interview....so INS doesn't have any testimony of my wife concerning the
good faith in which marriage was held except that we had a child in our relationship
which is a very big point.... the more facts that go in my favour are that i married
within the 90 day period and filed within the 90 day period too....and i've loads of
pictures of our honeymoon and our wedding ceremony.....plus hundreds of emails and
letters from her written to me and vice verca......so if INS can deport me on the
clause of "bad intent" at the time of marriage,then there's not a single point that
goes against me....but if there's another law which makes me deportable, then that's
a different story......
Sep 1st 2002, 3:49 am
#37
Guest
Posts: n/a
Re: death of spouse before adjustment interview
> This is just opposite of the previous postings on the subject. My understanding was
> that a K-1 could only be adjusted if still married or due to abuse.
Not what the law says, nor what it ever said, nor did anyone posting these things
actually try it. Contracting a marriage to the U.S. citizen petitioner within 90
days of K1 entry provides the basis for eligibility to apply for adjustment of
status. The marriage need not still remain in effect, although approval of the
adjustment of status application is discretionary and subject to the marriage having
been entering into in good faith and not fraudulent for immigration purposes.
Previous to the law change in March, 2001, only your petitioning relative could
submit an affidavit of support on your behalf, so it was probably routinely deniable
from 1997-2001 due to "likely to become a public charge" inadmissibility. Death now
allows an in-law to submit the affidavit under the new law.
CP
> that a K-1 could only be adjusted if still married or due to abuse.
Not what the law says, nor what it ever said, nor did anyone posting these things
actually try it. Contracting a marriage to the U.S. citizen petitioner within 90
days of K1 entry provides the basis for eligibility to apply for adjustment of
status. The marriage need not still remain in effect, although approval of the
adjustment of status application is discretionary and subject to the marriage having
been entering into in good faith and not fraudulent for immigration purposes.
Previous to the law change in March, 2001, only your petitioning relative could
submit an affidavit of support on your behalf, so it was probably routinely deniable
from 1997-2001 due to "likely to become a public charge" inadmissibility. Death now
allows an in-law to submit the affidavit under the new law.
CP
Sep 1st 2002, 7:10 am
#38
Guest
Posts: n/a
Re: death of spouse before adjustment interview
Chris Parker wrote:
> > This is just opposite of the previous postings on the subject. My understanding
> > was that a K-1 could only be adjusted if still married or due to abuse.
> Not what the law says, nor what it ever said, nor did anyone posting these things
> actually try it. Contracting a marriage to the U.S. citizen petitioner within 90
> days of K1 entry provides the basis for eligibility to apply for adjustment of
> status. The marriage need not still remain in effect, although approval of the
> adjustment of status application is discretionary and subject to the marriage
> having been entering into in good faith and not fraudulent for immigration
> purposes.
> Previous to the law change in March, 2001, only your petitioning relative could
> submit an affidavit of support on your behalf, so it was probably routinely
> deniable from 1997-2001 due to "likely to become a public charge" inadmissibility.
> Death now allows an in-law to submit the affidavit under the new law.
So, he needs an in law to sponsor him and that's it?
> > This is just opposite of the previous postings on the subject. My understanding
> > was that a K-1 could only be adjusted if still married or due to abuse.
> Not what the law says, nor what it ever said, nor did anyone posting these things
> actually try it. Contracting a marriage to the U.S. citizen petitioner within 90
> days of K1 entry provides the basis for eligibility to apply for adjustment of
> status. The marriage need not still remain in effect, although approval of the
> adjustment of status application is discretionary and subject to the marriage
> having been entering into in good faith and not fraudulent for immigration
> purposes.
> Previous to the law change in March, 2001, only your petitioning relative could
> submit an affidavit of support on your behalf, so it was probably routinely
> deniable from 1997-2001 due to "likely to become a public charge" inadmissibility.
> Death now allows an in-law to submit the affidavit under the new law.
So, he needs an in law to sponsor him and that's it?
Sep 2nd 2002, 2:56 am
#39
Guest
Posts: n/a
Re: death of spouse before adjustment interview
> So, he needs an in law to sponsor him and that's it?
I'd say so, and a good lawyer to present his case fully. They may push him all the
way into the BIA to make this decision a binding precedent, and he should be prepared
for a long fight although it may not come to that. The law supports him, but the
typical discretionary decisions do not.
CP
I'd say so, and a good lawyer to present his case fully. They may push him all the
way into the BIA to make this decision a binding precedent, and he should be prepared
for a long fight although it may not come to that. The law supports him, but the
typical discretionary decisions do not.
CP
Sep 2nd 2002, 3:02 am
#40
Guest
Posts: n/a
Re: death of spouse before adjustment interview
I wish you the best of luck. Please post again and let us know what happened. Will
you be going to the interview with your lawyer, taking your baby? What was your
lawyer's advice?
- Des
you be going to the interview with your lawyer, taking your baby? What was your
lawyer's advice?
- Des
Sep 10th 2002, 8:21 am
#41
Guest
Posts: n/a
Re: death of spouse before adjustment interview
hi des, i haven't got the date of my interview yet....and i dont think ill get it as
of now, cos the INS automatically revokes the application once the petitioner
dies.....my lawyer has forwarded my case to the INS and im just hoping to hear from
them soon..... thanks
[email protected] (Des) wrote in message
news:<[email protected]. com>...
> I wish you the best of luck. Please post again and let us know what happened. Will
> you be going to the interview with your lawyer, taking your baby? What was your
> lawyer's advice?
> - Des
of now, cos the INS automatically revokes the application once the petitioner
dies.....my lawyer has forwarded my case to the INS and im just hoping to hear from
them soon..... thanks
[email protected] (Des) wrote in message
news:<[email protected]. com>...
> I wish you the best of luck. Please post again and let us know what happened. Will
> you be going to the interview with your lawyer, taking your baby? What was your
> lawyer's advice?
> - Des
Sep 10th 2002, 8:27 am
#42
Guest
Posts: n/a
Re: death of spouse before adjustment interview
docsanjose wrote:
> hi des, i haven't got the date of my interview yet....and i dont think ill get it
> as of now, cos the INS automatically revokes the application once the petitioner
> dies....
How do they automatically do this? They aren't automatically notified.
> hi des, i haven't got the date of my interview yet....and i dont think ill get it
> as of now, cos the INS automatically revokes the application once the petitioner
> dies....
How do they automatically do this? They aren't automatically notified.
Sep 11th 2002, 1:23 am
#43
Guest
Posts: n/a
Re: death of spouse before adjustment interview
> hi des, i haven't got the date of my interview yet....and i dont think ill get it
> as of now, cos the INS automatically revokes the application once the petitioner
> dies.....my lawyer has forwarded my case to the INS and im just hoping to hear from
> them soon.....
If you are a K1 adjustment, there is no petition they can revoke and you are okay, as
the adjustment is instead based on marriage within 90 of entry with a K1 visa.
If you are an I130 adjustment case, yes that is true, and without a petition there is
no basis for adjustment.
CP
> as of now, cos the INS automatically revokes the application once the petitioner
> dies.....my lawyer has forwarded my case to the INS and im just hoping to hear from
> them soon.....
If you are a K1 adjustment, there is no petition they can revoke and you are okay, as
the adjustment is instead based on marriage within 90 of entry with a K1 visa.
If you are an I130 adjustment case, yes that is true, and without a petition there is
no basis for adjustment.
CP
Sep 12th 2002, 2:39 pm
#44
Guest
Posts: n/a
Re: death of spouse before adjustment interview
i mean to say that before even hearing from them regarding the adjustment interview
date, we've notified the INS regarding the death........ cos it didn't make sense
waiting for adjustment interview date which might have took upto 18 months........ ya
u r right they can't get notified unless someone tells them.
"[email protected]" <[email protected]> wrote in message
news:<[email protected]>...
> docsanjose wrote:
> >
> > hi des, i haven't got the date of my interview yet....and i dont think ill get it
> > as of now, cos the INS automatically revokes the application once the petitioner
> > dies....
> How do they automatically do this? They aren't automatically notified.
date, we've notified the INS regarding the death........ cos it didn't make sense
waiting for adjustment interview date which might have took upto 18 months........ ya
u r right they can't get notified unless someone tells them.
"[email protected]" <[email protected]> wrote in message
news:<[email protected]>...
> docsanjose wrote:
> >
> > hi des, i haven't got the date of my interview yet....and i dont think ill get it
> > as of now, cos the INS automatically revokes the application once the petitioner
> > dies....
> How do they automatically do this? They aren't automatically notified.
Sep 13th 2002, 12:31 am
#45
Guest
Posts: n/a
Re: death of spouse before adjustment interview
> i mean to say that before even hearing from them regarding the adjustment interview
> date, we've notified the INS regarding the death........ cos it didn't make sense
> waiting for adjustment interview date which might have took upto 18 months........
> ya u r right they can't get notified unless someone tells them.
Well, they could take that note as a withdrawal of your application for adjustment.
That would leave you, well, out of status and without employment authorization. 18
months more of valid status and employment authorization would be better. So I
disagree that was the right thing to do. What's done is done, but I'm not very
impressed with your lawyer.
If that does happen, you can still reapply for adjustment. Your marital status on
Form G-28 will become "widowed."
CP
> date, we've notified the INS regarding the death........ cos it didn't make sense
> waiting for adjustment interview date which might have took upto 18 months........
> ya u r right they can't get notified unless someone tells them.
Well, they could take that note as a withdrawal of your application for adjustment.
That would leave you, well, out of status and without employment authorization. 18
months more of valid status and employment authorization would be better. So I
disagree that was the right thing to do. What's done is done, but I'm not very
impressed with your lawyer.
If that does happen, you can still reapply for adjustment. Your marital status on
Form G-28 will become "widowed."
CP
