Immigration News That You Can Use -Matter of Stockwell Brought Back to Beginning State; Another BIA Decision Affirms Rights of Conditional Residents Through Marriage.

by Alan Lee, Esq.

  1. Matter of Stockwell Brought Back to Beginning State.

Looking at the USCIS policy manual recently, it now entirely embraces Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991), in which a person receiving conditional residence can marry someone else and that person can sponsor for permanent residence without having to go into the immigration court. USCIS had taken this route before, but complicated it later by saying that these applicants would have to go through the court, but now is coming back to the idea that USCIS can adjudicate.

This applies where USCIS has terminated the conditional residence for failure to timely file form I-751. Previously USCIS said that conditional residence could only be terminated by a formal notice by the agency. In the policy manual now, persons who file for adjustment of status from another marriage after the second anniversary of obtaining conditional residence, may be eligible to adjust on the new basis regardless of whether USCIS issues a notice of termination of status before the individual files an adjustment under the new basis. USCIS is now conceding that the INA provides that a conditional residence status terminates as a matter of law as of the second anniversary of the noncitizen’s lawful admission for resident status.

  1. Another BIA Decision Affirms Rights of Conditional Residents through Marriage.

The BIA decided in a recent ruling, Matter of H.N. Ferreira, 28 I&N Dec. 765 (BIA 2023), to solve the problem of persons who do not have the above situation of another marriage in the wings; whom DHS believes have non-bona fide marriages, but in going to immigration court, have their cases terminated, and are left in legal limbo without lawful status. In Ferreira, the immigration judge (IJ) first concluded the DHS had not established removability and terminated and when the respondent filed another I-751, it was denied by USCIS and removal proceedings re-initiated. The IJ then terminated a second time because DHS could not find the file in two hearings. The BIA ruled that given the significance of a respondent’s interest in securing review of a denial of an I-751, an immigration judge should ordinarily review the denial of a form I-751 upon the request of the respondent.

About The Author

Alan Lee, Esq. is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015, 2015-2023), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell's Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of "doing business" for multinational executives and managers to gain immigration benefits.

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