BIA Holds Fiancé(e) May Adjust Status Event If Marriage is Terminated

In Matter of Sesay, 25 I&N Dec. 731 (BIA 2011), the Board of Immigration Appeals (BIA) held that a K-1 fiancé(e) visa holder may be granted adjustment of status under INA § 245(a) if the applicant entered into a bona fide marriage within the 90 day period after entry. In a case where adjustment of status was precluded based on the K-1 applicant’s second marriage, the BIA held that 1) there is no requirement the beneficiary of a K-1 visa apply for adjustment of status within 2 years of admission; 2) the legislative and regulatory history of the K-1 visa does not preclude adjustment of status under INA §245(a) as opposed to family based immigrant petitions under INA § 204 which specifically prohibit adjustment of status where the marriage is terminated prior to adjustment. In making the decision, the BIA adopts the position of the 9^th and 10^th circuits in Choin v. Mukasey, 537 F.3d 1116 (9th Cir. 2008) and Carpio v. Holder, 592 F.3d 1091 (10th Cir. 2010).