ONE way of obtaining an immigrant visa here in the United States is through a petition filed by the US citizen or legal permanent resident spouse. The US citizen or legal permanent resident spouse must file an immigrant petition with the US Citizenship and Immigrations Services (USCIS) to start the immigrant visa process. Depending on where the beneficiary spouse is at the time the petition is filed, the beneficiary spouse may either file an adjustment of status application concurrently with the immigrant petition to be filed by the US citizen spouse or opt for consular processing if the beneficiary spouse resides outside the United States.
It will usually take several months before the petition is approved by the USCIS or a visa issued to the beneficiary spouse. In the meantime the spouses may have separated or are no longer living together as husband and wife. What then happens to the petition if it has not yet been approved; or if approved, what happens to the visa application? A lot of people think that the pending petition or adjustment of status application will be denied since the spouses are no longer living together. This is not necessarily the case.
Current regulations and case decisions are in unison in stating that even though the parties had separated and the marriage was no longer viable, so long as the marriage was bona fide at inception, the immigrant petition or adjustment of status application should not be denied.
To illustrate, we revisit one of the cases that we have had the opportunity to handle. In this case, Loreto entered the country using a visitor’s visa. He did not leave the country when his authorized stay expired. He is now what we call a TNT. Unfortunately, he came under the radar of the immigration officials when he was convicted of a crime. In the meantime, he got married to his US citizen girlfriend, Danica while in removal proceedings. Danica filed a petition for Loreto. They were eventually interviewed by the USCIS and after the interview, the USCIS approved the petition. For some reason, it took some time before the immigration court could schedule a hearing date for Loreto. By the time a hearing date was scheduled, Loreto was no longer living together with Danica. The immigration judge is now requesting Loreto to submit proof that the marriage is still viable before he can proceed with his adjustment application in court. Loreto approached our office when his former attorney of record withdrew from the case. Our office was then able to successfully argue before the Immigration Court that Loreto can still proceed with his adjustment application despite the fact that he was no longer living together with Danica.
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Atty. Dennis E. Chua is a partner in The Law Firm of Chua Tinsay and Vega (CTV), a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; [email protected]. The CTV Attorneys will be at Max’s Restaurant in Vallejo on October 19, 2009 from 5pm to 7pm to hold a FREE legal clinic.
