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27 I. & N. Dec. 488 (2018)
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Rule of Law:
An applicant for adjustment of status who entered on a K-1 fiancée visa must provide a legally sufficient Affidavit of Support from the original K-1 petitioner, even if the parties subsequently divorce. The petitioner's affidavit cannot be substituted with one from another individual to overcome the public charge ground of inadmissibility.
Facts:
- Sothon Song, a native and citizen of Cambodia, entered the United States on a K-1 nonimmigrant fiancée visa on November 25, 2011.
- Song married her United States citizen fiancé, the visa petitioner, within the required 90-day period.
- On February 3, 2012, Song filed an application for adjustment of status, accompanied by a Form I-864 Affidavit of Support executed by her husband.
- While the application was pending, the marriage broke down, and on July 10, 2012, the petitioner wrote to U.S. Citizenship and Immigration Services (USCIS) to withdraw his affidavit of support.
- Song and her petitioner husband divorced on December 20, 2012.
- Song later attempted to submit a new affidavit of support from a family friend to support her renewed application.
Procedural Posture:
- Sothon Song filed an application for adjustment of status with U.S. Citizenship and Immigration Services (USCIS).
- USCIS denied Song's application after finding her inadmissible as a public charge due to her husband's withdrawal of the Affidavit of Support.
- The Department of Homeland Security (DHS) initiated removal proceedings against Song in Immigration Court.
- Before the Immigration Judge, Song renewed her application for adjustment of status, submitting a new affidavit of support from a family friend.
- The Immigration Judge found Song removable, denied her adjustment application for failing to provide an affidavit from the petitioner, and ordered her removed.
- Song, the respondent, appealed the Immigration Judge's decision to the Board of Immigration Appeals (BIA).
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Issue:
Does an applicant for adjustment of status, who was admitted on a K-1 visa and married the petitioner before divorcing, have to submit an Affidavit of Support from that same petitioner to establish they are not inadmissible as a public charge?
Opinions:
Majority - Wendtland, Board Member
Yes. An applicant for adjustment of status who was admitted on a K-1 visa and subsequently divorced the petitioner must submit an affidavit of support from that original petitioner to avoid being found inadmissible as a public charge. The plain language of the governing regulation, 8 C.F.R. § 213a.2(b)(1), explicitly requires the person who filed the fiancé(e) petition to also execute the affidavit of support. The court reasons that the affidavit of support is a legally binding contract, and the commentary to the regulations makes clear that divorce does not terminate the sponsor's obligation. Furthermore, Congress created explicit statutory exceptions to this requirement for cases involving the petitioner's death or abuse, but not for divorce. Under the principle of statutory interpretation that the express mention of some exceptions implies the exclusion of others, no exception for divorce can be inferred.
Analysis:
This decision solidifies the binding and non-delegable nature of the K-1 petitioner's financial sponsorship obligation, tying it to the petition itself rather than the ongoing viability of the marriage. The ruling significantly impacts K-1 beneficiaries whose petitioning spouses become uncooperative post-marriage, as it effectively gives the petitioner a veto over the adjustment of status process by withdrawing the affidavit of support. The decision clarifies that unless the limited statutory exceptions for abuse or death apply, there is no recourse for a K-1 beneficiary if the petitioner-sponsor withdraws support, creating a potential vulnerability for this class of immigrants.
