Clearing The Misconceptions
It is widely believed that in absence of the original petitioning spouse, his or her petition for an immigrant visa on behalf of the beneficiary (aka alien spouse) and/or application for adjustment of status filed by the beneficiary would inevitably be denied by USCIS or an Immigration Judge as the case might be. Immigration attorneys regularly run into cases where after applying for a spouse visa and/or for an immediate relative petition based adjustment of status, the petitioning party leaves the other midway, jeopardizing the status of the pending applications for lack of a feasible marriage. However, strictly speaking the outcome of the case may not always be negative. Without the petitioning spouse status the process involves a few additional hurdles and hardships no doubt, but it is not entirely impossible to get the immigrant petition and/or adjustment of status application approved. Absence of the petitioning spouse places even greater emphasis, however, on the fundamental threshold inquiry and that is whether the marriage was entered into in good faith or in other words, whether the couple wished for a planned future together when they married or did it for a sole/predominant purpose of circumventing immigration laws.
The BIA Precedents and What They Mean
Two landmark precedent decisions of the Board of Immigration Appeals (BIA), the highest administrative appellate body for immigration matters, have sealed this position on spousal immigrant petition quite firmly — namely the Matter of McKee [PDF version] and the Matter of Boromand [PDF version], decided on March 11,1980 and August 1, 1980, respectively.
In the Matter of McKee [PDF version], the Board decided that a spousal immigrant visa petition could be approved even when the marriage of the parties involved was no longer viable — provided that the marriage in question was a bona fide marriage entered upon without any untruthful intentions, and divorce proceedings had not been initiated or legal separation finalized. In other words, it was held that a immigrant visa petition could not be denied just because the parties in question were not living together anymore. Thus the fact that a couple have decided to go their separate ways by the time of their permanent resident status interview does not prohibit USCIS from approving the US spouse's immigrant petition on behalf of the alien spouse. This is a key point to be kept in mind while filing an immigrant petition, as the ruling holds true till date.
In a somewhat parallel decision in the Matter of Boromand [PDF version], the Board held that in absence of any evidence which disproves the existence of a bona fide marriage or shows that the feasible marriage was dissolved at the time of adjustment of status adjudication, an adjustment of status application can be denied only if the “misrepresentation tends to shut off a line of inquiry which is relevant to the alien's eligibility and which might well have resulted in a proper determination that he be excluded.” The Board specifically put on record that it was unlikely that the respondent had married his U.S. citizen wife simply to reap undue benefits of his immediate relative status. Therefore his adjustment of status grant could not be rescinded based on the charge that he materially misrepresented his living arrangements with his wife at the time of his adjustment application.
Bonafide Nature of The Marriage is Paramount
Thus it can be clearly seen that the most crucial aspect in ensuring a successful application is the bonafide nature of what is perceived as a bona-fide marriage at the time it was entered upon. It is immaterial whether the parties lived together at the time of adjustment of status adjudication, or whether the marriage was viable at that point in time. It is also immaterial whether the marriage later became not feasible The marriage must be proved to have been bona fide at inception, that is not a sham — entered into for a sole purpose of evading U.S. immigration laws — and should not be legally terminated or paused by legal separation. These two are the primary “make it or break it” requirements that should be taken into account by both the beneficiary of a spousal petition and USCIS to insure impartiality and preserve the positive outcome of the beneficiary's adjustment of status application.
Affidavit of Support Requirement Might Still Be A predicament:
Family based immigrants who are petitioned by their family members including spouses, children, parents and siblings are required by INA 212(a)(4) to execute an Affidavit of Support — USCIS form I864, a complicated legal contract between the petitioner, the sponsored immigrant and the US government. This contract imposes on the petitioner an obligation to reimburse the U.S. taxpayers in case if the sponsored immigrant seeks and obtains means tested public benefits. Such obligation survives the approval of the immigrant petition but only kicks in when the sponsored immigrant becomes a Legal Permanent Resident (LPR). The obligation also survives a divorce as discussed in more detail in the Affidavit of Support article. A Legal Permanent Resident is an immigrant status in the USA, which provides the alien the privilege of permanently residing in the USA. Because the Affidavit of Support serves as primary evidence of the alien's overcoming the presumption of public charge found in INA 212(a)(4)(a), having it executed by the petitioner is a precondition to approval of an family based immigrant visa or adjustment of status. Hence, unless the spouse had previously executed and filed USCIS form I864 with USCIS as part of alien spouse's immigrant process, the alien will not be granted an LPR status. Neither Matter of McKee [PDF version] nor Matter of Boromand [PDF version] can help the alien spouse to overcome this predicament.