Third Circuit Decision has Important Implications for Foreign Spouses

The following is a guest post from Chicago lawyers, Dolan Law Offices:

Last June, Diana Ali of Los Angeles and Karsten van Sander of Great Britain and Germany got married following a two-year courtship. The newlyweds moved to Plainsboro, New Jersey and started their life together. Diana had an internship at Princeton Hospital and Karsten had a green card application pending.

However, earlier this month, three immigration officials came to the couple’s home and took Karsten away in handcuffs. He was taken to a detention center in Elizabeth, New Jersey where he faced deportation without a hearing and a 10-year ban on returning to the United States because of the mistake in his green card paperwork.

Here’s the problem, as seen by immigration officials: Karsten was in the country pursuant to the visa waiver program which allowed a 90-day stay for travelers from favored nations, such as Great Britain and Germany. The 90 days may be stayed if a green card application is properly filed. However, because of a mistake in Karsten’s paperwork, the green card application was not properly filed. Thus, immigration officials took advantage of a little used provision of the visa waiver program that allows people to be deported without a hearing (except in asylum cases) if they stay more than 90 days without taking appropriate actions to extend their stay.

The immigration officials took this action against Karsten because of a Third Circuit Court of Appeals decision that was issued on April 22, 2010. That decision left foreign spouses with no defense against deportation if immigration officials decided to expel them because they overstayed their 90 days allocation in the country. Thus, marriage to an American citizen is no defense against deportation in Third Circuit states, including New Jersey, or in the states covered by approximately half of the other Circuit Courts of Appeals. Because Diana and Karsten live in New Jersey, a state governed by the Third Circuit, the decision applied to them.

Since taking custody of Karsten, and being contacted by the New York Times about this case, immigration officials seem to have had a change of heart and are using their discretion to allow Karsten to try to repair his immigration case. However, other couples may not be as lucky.

Source for this post: New York Times “Strict Reading of Visa Rule Trips Up More Couples”, by Nina Bernstein, May 14, 2010.

Dolan Law Offices are lawyers in Chicago who are committed to fairness and justice for all.