Murthy Law Firm Obtains I-485 for Spouse Legally Separated25 Sep 2009
Although the Murthy Law Firm obtains many case approvals each day, a few immigration stories are selected to share with our readers. In this particular client’s case, an unusual legal issue is involved, stemming from a domestic relationship that is not uncommon. Another Murthy Law Firm success story is presented for the benefit of our readers, thanks to the gracious permission of our client. All personal, identifying information has been eliminated, protecting the identity of the individual and maintaining client confidentiality.
Facts: USCIS Denial of I-485 Based on Separation from Principal Beneficiary
Our client’s spouse was the primary beneficiary in an employment-based (EB) permanent residence (or “green card”) case. The husband, our client, was a derivative beneficiary in the case. Prior to the adjudication of the couple’s adjustment of status (I-485) applications, they experienced marital difficulties and were legally separated under the laws of their state of residence. (It is important to note that a legal separation is different from merely living separately. Procedures differ from state to state, but court filings and orders are required.) The USCIS approved the wife’s I-485, as the status of the marriage was not relevant to the primary applicant’s case.
The USCIS denied the husband’s I-485 application based upon the conclusion that “there remains no relationship with the principal applicant through whom you may derive status.” Basically, in order to be a dependant in a green card case, the relationship that makes one eligible to file the case must continue to exist. To support its finding, the USCIS cited a case entitled Matter of Lenning, 17 I&N Dec. 476 (BIA 1980). This is a long-standing, well entrenched case, often relied upon in cases and immigration literature for the proposition that dependant immigration benefits are not available to a spouse after a legal separation. In the Lenning case, the Board of Immigration Appeals affirmed the denial of an I-130 spousal petition in which the parties to the marriage had entered into a formal, written separation agreement.
The Murthy Law Firm was hired by the husband to assist him with his I-485 case. We successfully filed and argued a motion to reopen / reconsider (MTR) the denial of his I-485. Our argument revolved around demonstrating that this particular case was different in significant ways from the case in Lenning and, thus, should have a different, favorable outcome.
Murthy Law Firm Argues EB Case and Different State Laws
In the MTR, several arguments were put forth in support of our client’s case. Specifically, the Murthy Law Firm argued that Lenning did not apply in our client’s situation, because there were significant, distinguishing factual differences between the circumstances in that case and in our client’s case. First, the Lenning decision considers the case of a family-based (FB) immigrant visa petition and not an employment-based (EB) petition benefiting our client’s spouse. Second, the laws of the state of the couple’s residence, which governed the legal separation agreement at issue, are distinguishable from the laws and procedures in New York, which was the state in the Lenning decision.
Murthy Argued Differences between EB I-485 and FB Filing
The Murthy Law Firm distinguished the fact that our client applied for adjustment of status as a derivative beneficiary of his wife in an EB petition, while the petitioner in Lenning was the beneficiary of an FB immediate relative petition. While this difference alone would not be enough, we noted that the laws regarding these cases are contained in different provisions, with key differences in procedures. In employment-based cases, it is expected that derivative beneficiaries will simply “piggyback” on the qualifying principal family member’s petition. More is required in FB / immediate relative cases.
Differing State Laws Support Legal Arguments on Separation
We at the Murthy Law Firm obtained input from divorce attorneys regarding New York domestic relations law, as well as the procedures in our client’s state. The action of legal separation in the state that governed his separation agreement allowed for the prospect of reconciliation. It does not inevitably lead to divorce and, thus, does not irrevocably terminate the marital relationship. This is distinct from the procedure in New York, at the time of the Lenning case, where there was more of a direct, inevitable progression from separation to divorce. We demonstrated that there were important legal differences between the impact of a separation in our client’s state, as compared to the same in New York. We argued that these differences meant that, while a legal separation may sufficiently break the marital relationship in New York, they did not do so in our client’s state of residence. Thus, he remained eligible for immigration benefits appropriate for a spouse.
The Murthy Law Firm also demonstrated that our client, the dependant in the I-485 application, continued to remain closely involved in the lives of his wife and his children. Based on these as well as other arguments, our client’s I-485 application was reopened and approved. He has received his plastic green card and the entire family is excited with the approval and with our firm’s ability to present legal arguments to help them obtain success.
We at the Murthy Law Firm are happy to share encouraging immigration stories with our readers. Even complex and seemingly hopeless cases sometimes find positive outcomes. We advise our clients that legal separation, as a general matter, is regarded as a termination of eligibility for spousal immigration benefits. Anyone experiencing marital difficulties should seek advice regarding the impact of a separation or divorce on the parties’ immigration statuses. Each situation is different, and, while our firm was successful in this case, for this man and his family, who reside in a particular state, the decision took well over a year. Our attorneys are always available to advise our MurthyDotCom and MurthyBulletin readers and offer guidance when complications arise in an immigration case.
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