BIA Exposes Weakness in Immigration-Through-Marriage Law

By David North on April 19, 2011

You might think that if an alien obtains legal status in the U.S. through a marriage-related visa that the government would want the marriage to last for a while, say, two years. Right?

Well, you would be, sometimes, wrong. Or so the Board of Immigration Appeals (BIA) has ruled. (The BIA, an arm of the Justice Department, plays the role of U.S. District Courts in cases appealed from Immigration Judge rulings.)

Before we get much further, I must admit that I look upon such things with a dual, specialized interest. I was the only expert witness when the Senate Immigration Subcommittee, under then-Sen. Alan Simpson (R-WY), held a hearing on marriage visas some years ago, which led to the current law on immigration-by-marriage.

Also, and quite separately, one of my sons married a terrific Canadian woman (in Canada) under that law, and the marriage has worked wonderfully and she became, sequentially, a conditional entrant to the U.S. for two years, a green card holder, and then a citizen who usually votes Democratic – no father-in-law could ask for anything more!

My daughter-in-law went through a process that calls for a conditional legal status, for two years, and then, if the marriage continues to work for both parties – as this one did – a green card is issued. Before the Simpson bill became law there was no such waiting period for the green card, and much marriage fraud occurred because of it.

There is, in addition to this legal and sensible route to migration-by-marriage another technique involving a nonimmigrant (K-1) visa. The immigration bar loves the proliferation of visa categories, and this is one of them.

In the K-1 case, the couple is not married when the fiancé(e) arrives; the alien then has 90 days in which to become married to the citizen, and then after the marriage the alien can apply for adjustment of status. There is no two-year conditional period involved. For more on the K-1 rules see here.

In the March 17 case before the BIA, Matter of Sesay, the board ruled that though the alien (Mr. Sesay) was no longer in a viable marriage to his citizen wife when he applied for the green card, he could get his adjustment anyway. All that was required, in this part of the immigration-by-marriage law, was that there had been a bona fide marriage within 90 days of his admission on a K-1 visa.

I am no lawyer, and do not argue that the BIA made an incorrect decision under the existing law, but as an observer of immigration policy I find it inappropriate that there is one way to use marriage to become a green card holder that does not require a two-year waiting period, and another one that does. I would prefer to see the two-year conditional status period imposed on all types of immigration-by-marriage.

Given how fraud in immigration often follows the easiest route to an illicit green card, we may see an increased fraudulent usage of the K-1 route, now that the BIA has made this decision. Congress needs to step in to insist on the two-year conditional arrangement for all alien-citizen marriages under all parts of the Immigration and Nationality Act.