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USCIS Guilty of Conspiracy to Murder? The Creation of Solutions to Non-Problems

by Eugene Goldstein

Is USCIS potentially guilty of a conspiracy to murder? Will Commissioner Myorkas be taken away in chains?

The minutes in Q&A form of a March 21, 2012 meeting between USCIS Field Operations and AILA (AILA Infonet Doc. No. 12050847) carried an interesting colloquy.

Question 1B asks if an I-864 affidavit of support is required for a K-1 adjustment applicant under Matter of Sesay 25I&N431, (BIA, 2011). Sesay held that there is no requirement that a K-1 fiancé(e)'s marriage to the I-129F petitioner remain intact in order for the K-1 beneficiary to adjust status thought that petitioner.

USCIS advised that under Sesay the K-1 entrant must still establish admissibility as an "immediate relative" and that, although the K-1 would adjust under §204 of the Act and not under §245, the applicant would not be admissible as she or he would be a public charge under §212(a)(4)(c) of the Act unless the I-864 was filed. This interpretation would, therefore, have the practical effect of reversing Sesay, (and would create a dispute between USCIS and the BIA).

It must be remembered that §213(A) of the Act requires the petitioner to file the I-864 (affidavit of support) - even if the petitioner - in the situation covered by Sesay is divorced. If the divorced petitioner refuses to file the I-864, which would make her or him liable for supporting the divorced applicant spouse, the applicant is out of luck - even if the petitioner was an abuser - except, as stated by USCIS in the minutes:

If the alien and the original sponsor are divorced, the K-1 may adjust so long as the original sponsor already executed a Form I-864 or is willing to do so. Divorce on its own does not end the I-864 obligation. If the original sponsor never executed a Form I-864, and is not willing to do so, the K-1 will be inadmissible as a public charge.

Note that if the K-1's marriage ends by death, it is likely that the K-1 would be able to adjust as the widow(er) of the citizen petition. In that situation, no I-864 is required.

So, in the last several years USCIS has said that O/P managers cannot manage, 14 Bender's Immigr. Bull. 1574,1591-1594; medical residency affiliates are not "affiliates." 16 Bender's Immigr. Bull. 608 (April 1, 2011); H-1B corporate petitioners may not be in control. 15 Bender's Immigr. Bull. 217, 249 (February 1, 2010); and now USCIS interprets its policies to advocate murder - an aggravated felony which would make the K-1 inadmissible, and would also appear to make the entire agency guilty of a conspiracy to murder-and also inadmissible. (Although it might be difficult to find a country which would accept them.)

A government agency is presumed to be knowledgeable about the subject it is regulating, and the effects of those regulations. For an agency tasked with dealing with very serious, managerial, operational, job creation and social management issues - why are limited resources being devoted to creating hyper-technical solutions for which there are no problems.

About The Author

Eugene Goldstein is a 35+ year practitioner of immigration law with an office in NYC. He is a graduate of CCNY and the law school of Washington University in St. Louis. He is a member of AILA and of NAFSA- Association of International Educators, and a recipient of the NAFSA Region 10 James O'Driscoll Award for outstanding service and leadership; the Community Leadership Award from the Council of International Student Advisors of the City University of New York; and most recently of the Anti-Defamation League's "Generations of Justice Award" for his long commitment to equal justice and fair treatment. He holds adjunct status with The City University of New York, and is a member of the Dean's Advisory Council of the Division of Humanities and the Arts at CCNY. He is the author of several papers on immigration law topics and is a frequent speaker on immigration topics on college and university campuses in the NYC tristate area.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.