On November 19, 2018 the Board of Immigration Appeals, or BIA, held that an applicant for adjustment of status who was admitted on a K-1 visa, fulfilled the terms of the visa by marrying the petitioner within the required 90 day period, and was later divorced, must submit an affidavit of support from the K-1 petitioner to establish that he or she is not inadmissible as a public charge.  Matter of Song, 27 I&N Dec. 488 (BIA 2018).

The respondent was a native and citizen of Cambodia who entered the United States on a K-1 nonimmigrant fiancé visa. She married the petitioner (her United States citizen fiancé) within 90 days, as required by law. She subsequently filed an application for adjustment of status, along with form I-864 Affidavit of Support, signed by her husband. However, before she could adjust status, her husband wrote to U.S. Citizenship and Immigration Services, or USCIS, to withdraw the affidavit of support. Without the accompanying affidavit of support, her application for adjustment of status was denied by USCIS, which found her inadmissible as “an alien who is likely to become a public charge” under section 212(a)(4) of the Immigration and Nationality Act (INA).

In finding that an affidavit of support from the petitioner is required, the BIA said that it was following the plain language of INA § 212(a)(4)(C)(ii), which states that “the person petitioning for the alien’s admission” must execute an affidavit of support “with respect to such alien.”  The BIA also pointed to the regulations at 8 C.F.R. § 213a.2(b), which state that, with respect to fiancé petitions, “the person who filed [the fiancé petition] … must execute an affidavit of support on behalf of the intending immigrant.”

The respondent tried to renew her application for adjustment of status in removal proceedings, arguing that an affidavit of support from a substitute sponsor was sufficient in the situation where the K-1 petitioner has both withdrawn the original affidavit of support and divorced the intending immigrant. 

The BIA rejected that argument and found that in spite of the divorce, the only person eligible to submit an affidavit of support was the K-1 petitioner. In so doing, it highlighted the two exceptions to that requirement that continue to apply. First, where there is abuse from the petitioner there is no affidavit of support requirement and the public charge ground of inadmissibility does not even apply. Second, in the event of the death of the petitioner prior to adjudication of the adjustment of status application, the intending immigrant may have a qualifying relative submit the affidavit of support in lieu of the petitioner in order to avoid being found inadmissible for public charge.