James, a noncitizen foreign national, is married to Lesly, a United States citizen, and by virtue of this marriage was accorded a lawful conditional permanent resident status. However, not even a full year into the marriage the newlyweds find themselves extremely unhappy with each other and are fighting incessantly. Lesly files for divorce and the marriage is terminated. A few months after the divorce was finalized, James marries for the second time to Barbara, who is also a United States citizen. James now seeks to adjust his status to that of a lawful permanent resident based on his current marriage to Barbara. However, his application to adjust status was rejected because his status as a conditional permanent resident based on his first marriage has not been terminated.
Can James terminate his conditional status based on his marriage to Lesly, and subsequently adjust his status based on his current marriage to Barbara?
According to the Immigration and Nationality Act (INA): In the case of an alien with permanent resident status on a conditional basis under subsection (a), if the Attorney General determines, before the second anniversary of the alien’s obtaining the status of lawful admission for permanent residence, that (A) the qualifying marriage … (ii) has been judicially annulled or terminated, other than through the death of a spouse; … the Attorney General shall so notify the parties involved and, subject to paragraph (2), shall terminate the permanent resident status of the alien involved as of the date of the determination.
Moreover, the Board of Immigration Appeals has highlighted the authority of the Citizenship and Immigration Services of the Department of Homeland Security to affirmatively terminate the conditional resident status of a noncitizen foreign national according to the INA. Termination of an alien’s conditional resident status can occur in three ways. First, under section 216(b)(1) of the INA, they may terminate the alien’s conditional resident status before the 2-year conditional period expires, where the Service determines that the qualifying marriage was judicially annulled or terminated. Second, the Service may terminate the conditional resident status for failure to timely file a joint petition to remove the conditions on permanent resident status. Finally, the Service may terminate the noncitizen’s conditional resident status upon determining that the information provided in the joint petition to remove conditions is untrue.
In Matter of Stockwell, the Board found that the Service properly terminated respondent’s conditional permanent resident status because the qualifying marriage had been legally terminated. Similarly, in Matter of Lemhammad, the respondent married a United States citizen and obtained a conditional resident status under Section 216 of the Act. Sometime thereafter, the respondent and his wife divorced, and the Service terminated his conditional resident status under section 216(b)(1)(A)(ii) of the Act, based on his divorce.
The Board also held that an alien holding a conditional permanent resident status is prohibited from adjusting his status under 245(a) of the Act, pursuant to Section 245(d) of the Act. However, Section 245(d) of the Act does not prohibit an alien, whose conditional permanent resident status has been terminated, from adjusting his status under Section 245(a). There, respondent’s conditional resident status was terminated by the Service upon his divorce from his US citizen spouse. Respondent thereafter sought to adjust his status based on his (second) marriage to a US citizen spouse, whose visa petition filed on his behalf was approved. The Board found that section 245(d) does not bar the respondent from adjusting his status pursuant to section 245(a) of the Act, based on his second marriage to a US citizen spouse.
Thus, James should be able to adjust his status to that of a lawful permanent resident based on his second marriage as long as his conditional resident status based on his first marriage is terminated.
Marriage and divorce are very personal in nature and in themselves are hard enough decisions to make, and navigating through the immigration laws on top of it makes it more difficult and frustrating. It is important to be informed and know your options. An experienced immigration firm or attorney will be able to help you understand what immigration terms mean specific to the regulations, what steps might be taken for your particular case, and the options available to you under the evolving immigration laws.
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Atty. Lilli Berbano Baculi is an associate attorney with Chua Tinsay & Vega, A Professional Legal Corporation (CTV) – a full service law firm with offices in San Francisco, San Diego, Sacramento and Philippines. 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 (619) 955-6277; (415) 495-8088; (916) 449-3923; [email protected]. For general information visit www.chuatinsayvega.com.
