Rete

Not an expert, but a long time user of CIS and reader of the forum. Guess it would be a discretionary thing on the part of the examiner.

There have been in the last year two instances where the examiner has refused to give LPR status even though the second wedding anniversary was long past. He claimed it was CIS policy not to give LPR status to adjusted based on marriage to a USC.

sphyrapicus

And if memory serves me correct, wasn't it K1s in both cases?

Rete

I was going to say that original but since I wasn't 100% sure if they both were, I didn't mention it. I know that Margaret from Canada was a K-1.

karo

interesting. as i asked before, what about the principle of equal protection under the law? i know that there are 2 conflicting statutes in the immigration law, due to the fact thet AOS used to be processed on the same day of application, but since they are backlogged, oftentimes the 2nd anniversary of marriage had passed, and if that is the case, the second statute provides that the applicant shall receive LPR. does anyone of you know of any "law" links regarding this matter? thanks.

Folinskyinla

Hi:

It is NOT discretionary decision.

That said, the long delays have caused a statutory ambiguity to appear in the case of K-1/2 admissions.

The two year condition was created by the 1986 Immigration Marriage Fraud Amendments [IMFA]. IMFA was a poorly drafted piece of legislation which cruised under the legislative radar due to the debate on the much bigger Immigration Reform & Control Act [IRCA]. While IRCA was subject to much debate, conference committees, lobbying, etc etc., IMFA was one of those bills that was an enforcement "wish list", had one mark-up committee hearing and then disappeared like many proposals do. However, this one arose like a pheonix on the last day of the session to reach the floor for a voice vote -- and who would vote against marriage fraud?

As I said, it was badly drafted. And the most unfair part of it was corrected in the 1990 Immigration Act.

That said, Section 216 of the INA creates the condition. 216(g) specificaly excludes K-1 marriages from its ambit -- e.g. it will not be suject to the condtion AFTER two years. Howver, section 245(d) strongly states that the Attorney General "shall not" grant adustment other than as the spouse of the K-1 petitioner on a conditional basis.

Now this was not a problem back in 1986 when K-1's were processed on a walk-in basis [e.g. you walked in with the I-485 and a marriage certificate and it was stamped on the spot]. But with the currrent delays, the statute is now ambiguous.

In fact, the literal language can be read to mean that CIS loses the power to adjust after the second anniversery of the marriage. However, as an absurdity, nobody follows that one. The most reasonable interpretation IMHO is that 245 adjustment is pursuant to 216 which exempts marriages more than 2 years old. However, I've heard that some districts take the "shall not" language mandates imposition of the condition.

Unfortunately, this is one of those legal items that will evade judicial resolution.

Folinskyinla

Hi:

"Equal Protection" is a consitutional provision. However, since the law classifies people for diparate treatment, it is not absolute requirement. [e.g why are only convicted criminals required to spend time in jail instead of everybody? There is a reason for this disparate treatment].

In classific equal protection analysis there is "rational basis," "heightened scrutiny" and "strict scrutiny." Actually, immigration is one of the few areas of the law where "rational basis" classifications have failed to survive judicial scrutiny.

However, you are talking here about misadministration -- and that is different from equal protection analysis.

passion

You're a BAD pecker!

karo

hi!
do you know if New York City is one of those districts?

Folinskyinla

Hi:

Sorry, I don't know. My practice is here in L.A. and THEY don't do it that way.

karo

thanks.

loebster

OK .. now that I have the AOS and the biometric terms straight ... next
question is during the period between k1 and AOS interview and
subsequent green card are you allowed to travel to Hawaii ? Are you
allowed to travel to Puerto Rico and/or the US Virgin Islands ? Without
checking I would assume that since Hawaii is a State it would be
permitted however there is this thing about leaving the Continental
United States and Hawaii is not considered part of the Continent -
bottom lineis can we travel there?

sphyrapicus

Yes, you can travel to Hawaii, Puerto Rico, and the USVI without needing AP.

Folinskyinla

Hi:

Take a look at the defintions contained in section 101(a) of the Immigration & Nationality Act:

(36) -- "State includes DC, Puerto Rico, Guam and the US Virgin Islands
(38) -- "United States" in a geopgraphical sense, means continental US, Alaska, Hawaii, Puerto Rico, Guam and US Virgin Islands. [BTW, this was enacted in 1952 before Alaska and Hawaii were admitted to statehood in 1959 and 1960, respectively -- any 49 star flags for sale on E-bay?].

(29) Outlaying possessions of the US are American Samoa and Swains Island.

So, don't travel to Midway Island or Wake Island! [Midway used to be part of the Territory of Hawaii, but did not become part of the State of Hawaii -- go figure -- it has been part of litigation].

By long practice, travel between US ports is NOT considered travel outside the US. However, in 1996, the legal underpinning of this was [I believe inadvertantly] eliminated by the deletion of the term "entry" defined at 101(a)(13) and its replacement by the term "admission." However, this interpretaton and practice has NOT changed. There is a famous case [so famous, I forget the name] from the 1940's where a criminal who had completed his long prison sentence was to be deported based upon an "entry" in 1915 -- he took the night train from Buffalo to Detroit. Unknown to him, the route of the train transited Canada in the middle of the night with no stops. I wonder what would happen if that case came up today?

brent4

I was thinking the same thing for a couple years, but....
if your not from the U.S. then you have no rights here, you don't even
have the right to life.
so I am sure if they start handing out rights they probably won't start
with people filing for Immigration.

just my opinion.

ian-mstm

What a load of bullshit! Jeez, and I thought I was cynical.

Ian