Fiancée Adjustment after Fiancé Passes Away

Eventually, I would like to draft and share a post about why I wanted to be an immigration attorney. In the meantime, I would like to share some memorable moments from my practice as an immigration attorney and the profound impact that it had on our clients.

I had a client named Maria. Maria entered the United States under a Fiancée visa (K-1) with her daughter who entered as a K-2. Maria married her fiancé within 90 days of her entry into the United States. Maria filed the green card paperwork with USCIS for both her and her daughter. Unfortunately, Maria’s husband passed away before the green card paperwork was adjudicated.

After Maria’s husband passed away, Maria and her daughter were evicted and was shuffled around from place to place due to their limited financial means so they never received the interview notice from USCIS. Subsequently, the green card paperwork was denied as abandoned. Maria and her daughter never followed up with their immigration paperwork because Maria was advised that she and her daughter were not eligible for a green card once her husband passed away.

The story advances 10 to 12 years into the future, which is when I first met Maria and her daughter in 2013. Maria’s daughter is now in her twenties and she came for a consultation to see if an immigration attorney can help her with her situation.

She explained that the last 10 to 12 years had been horrible for both her and her mother. They believed that they were in the United States illegally and were tired and exhausted from worrying about being deported at a moment’s notice. She explained that she went to a couple of immigration attorney approximately 5 years ago in 2008 but none of them could help her and her mother.

I explained to Maria and her daughter that we may be able to help her but we had to conduct some initial legal research. Due to the passage of time, Maria and her daughter were not eligible for immigration benefits as a qualifying widow since more than 2 years has passed from when Maria’s husband passed away.

However, at the time, I thought, “Maybe we can work out a solution with Maria’s K-1 status?“

In 2011, the BIA issued a decision in Matter of Le, which held that a K-2 is not ineligible for adjustment of status imply by virtue of having turned 21 after admission to the United States on a K-2 nonimmigrant visa. 25 I&N Dec. 541 (BIA 2011). Similarly, in the same year, the BIA issued a decision in Matter of Sesay, which clarified and focused the inquiry of a K-1 adjustment to whether the K-1 nonimmigrant married her fiancé within 90 days after the entry into the United States and whether there was a filed Affidavit of Support (“Form I-864”) by the husband. 25 I&N Dec. 431 (BIA 2011).

Once we had a plausible legal theory, Maria and her daughter retained us for legal representation and we filed a Freedom of Information Act (“FOIA”) request with USCIS to obtain a copy of Maria’s file with immigration. The FOIA response contained a copy of the Form I-864 that was filed by her husband. Subsequently, we filed Maria and her daughter’s application to adjust status and they were both granted.

The smile on Maria’s daughter’s face when she received news of the approval…

Years later after this story, the BIA issued a decision in Matter of Song, which clarified that an Affidavit of Support is not needed for a K-1 adjustment if the petitioner has died prior to adjudication of the adjustment application. 27 I&N Dec. 488, 492 (BIA 2018)(citing INA § 213A(f)(5)(B)(i))

Disclaimer: The names has been changed in this story to protect the identity of our clients. Certain elements within this story may have been changed to flow better and this post should be treated as a work of fiction. Immigration law is constantly changing and certain law and strategies may no longer work. Past successes do not guarantee future results.