by Emmanuel S. Tipon, Esq.
There are a number of alien fiancés/fiancées who come to the United States pursuant to an approved fiancé/fiancee visa petition filed by a U.S. citizen (Green card holders are not eligible to file a fiance/fiancee visa petition). Most, but not all, come in good faith. What can the alien fiancé/fiancee do when the U.S. citizen cannot or does not want to marry such alien fiancé/fiancee?
In one case, an Ilocana from Ilocos Norte was engaged to a U.S. citizen from Hawaii. He filed a fiancee visa for her to enter the United States to marry him. She entered the United States but unknown to her, the U.S. citizen had been murdered a week earlier. Instead of a wedding, she attended his funeral.
Desirous of remaining in the U.S. she entered into a marriage with another U.S.C. the following month. She conceded that the marriage was fraudulent. The fraudulent character of her marriage came to the attention of the Immigration and Naturalization Service (INS), which brought proceedings to deport her. Her father and her four-year-old daughter are citizens of the United States. Her mother is a permanent resident. I met the daughter who at that time was already an adult.
The immigration judge ruled that she was deportable and denied her application under 8 U.S.C. § 1251(f)(1) for waiver of deportability as the mother of a United States citizen and the child of a United States citizen.
She appealed to the Board of Immigration Appeals (the Board) which ruled that according to 8 C.F.R. § 214.2(k)(5), the approval of a nonimmigrant fiancé petition is automatically terminated when the petitioner dies before the beneficiary arrives in the United States. Since her fiancé died prior to her arrival, her visa petition was automatically revoked upon his death and she was no longer entitled to the status accorded by her visa. See Matter of Alarcon, 17 I & N Dec. 574 (BIA 1980). Her nonimmigrant visa was therefore invalid at the time she sought admission to the United States.
The Board said that she was deportable due to the lack of a valid visa at the time of her entry, not because of the fraud she later committed to adjusting her status on the basis of a sham marriage. Thus, a section 241(f)(1) [now 237(a)(1)(H)] waiver would not eliminate the grounds of deportability with which she is charged. [Only aliens who entered the United States by misrepresentation may apply for a waiver of removability under this provision].
The Court of Appeals dismissed her appeal, saying that her fiancé died before she reached the United States, and therefore it was impossible for her to meet the criteria of being engaged. The fact that she was unaware of the event does not change the objective fact that her fiancé was no longer alive.
The court said that under 8 U.S.C. § 1251(a), inadmissibility at the time of entry continues to affect the status of an immigrant even though she, in fact, was admitted. The Immigration Service can deport the alien upon proof that she did not have the requisite status at the time she entered. See Caddali v. I.N.S., 975 F.2d 1428 (9th Cir. 1992).
I met the Caucasian lawyer of the Ilocana some 15 years after the case was decided. He was well-known in Hawaii. We became good friends and exchanged ideas on immigration case strategies. He asked me what I would have done in this case.
Very simple, I said. Have her or her parents look for another fiancé for her. Then she goes back to the Philippines and has the second fiancé petition for her. Or, have her marry a U.S. citizen, then she goes back to the Philippines and has the husband petition for her. If she cannot find a U.S. citizen fiancé or husband within the 90-day period, she should go back to the Philippines and have her U.S. citizen father and her lawful permanent resident mother petition for her.
I mentioned to the lawyer that I met the Ilocana’s daughter who had asked if her mother could come back. I told the lawyer that I had answered the daughter: “Where there is a will there is a way.”
In another case, the U.S. citizen fiancé refused to marry the alien fiancee whom he had petitioned and who had arrived in the United States. He reasoned that he was not pleased with her performance. He said he would give her a one-way ticket to going back to the Philippines.
The question was raised as to whether the alien fiancee could compel the petitioner to marry her. Absolutely not. What she could do is to look for another fiancé or another man to marry her who could then file a fiancée visa petition or alien relative petition for her as appropriate. The alien has a 90-day window of opportunity. But the alien fiancee must go back to her home country to await the approval of the visa petition.
The information provided in this article is not legal advice. Publication of this information is not intended to create, and receipt by you does not constitute an attorney-client relationship.
ATTY. EMMANUEL S. TIPON was a Fulbright and Smith-Mundt scholar at Yale Law School where he obtained a Master of Laws degree specializing in Constitutional Law. He has a Bachelor of Laws degree from the University of the Philippines. He is admitted to practice before the U.S. Supreme Court, the U.S. Court of Appeals for the Ninth Circuit, U.S. District Court in California (N.D.), the courts in New York and in the Philippines. He practices federal law, with emphasis on immigration law and appellate federal criminal defense. He was the Dean and a Professor of Law of the College of Law, Northwestern University, Philippines. He has written law books and legal articles for the world’s most prestigious legal publishing company and writes columns for newspapers. He wrote the best-seller “Winning by Knowing Your Election Laws.” Listen to The Tipon Report which he co-hosts with his son Attorney Emmanuel “Noel” Tipon. They talk about immigration law, criminal law, court-martial defense, and current events. It is considered the wittiest, interesting, and useful radio show in Hawaii. KNDI 1270 AM band every Thursday at 8:00 a.m. Follow The Tipon Report on YouTube. Atty. Tipon was born in Laoag City, Philippines. Cell Phone (808) 225-2645. E-Mail: firstname.lastname@example.org. Website: https://www.tiponlaw.com.
by Emmanuel S. Tipon, Esq.