Adjustment of Status of Fiancé(e) After Divorce

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The K-1 nonimmigrant visa allows the foreign fiancé(e) of a U.S. citizen a single entry into the United States for the sole purpose of marrying the K-1 petitioner. The marriage must take place within 90 days after entry. In the event the marriage does not take place within the 90-day period, the K-1 visa holder shall be required to depart the U.S.

 

Under the law, the fiancé(e) cannot change to any other nonimmigrant status and cannot be granted extension of stay. He is also barred from adjusting status except on the basis of the marriage to the K-1 petitioner.

If he adjusts status on the basis of his marriage to the K-1 petitioner, he will be granted conditional residence status. He can later file with his spouse a joint petition to remove the condition. If the marriage is terminated such as when the marriage ends in divorce, the foreign spouse can request waiver of the joint filing requirement.

If he has been married for more than two years at the time that he adjusts status, he is granted permanent and not conditional residence status.

What happens if the marriage is terminated before the adjustment of status application is adjudicated?

If the petitioner dies after marrying the K-1 beneficiary within the 90 day period but before the adjustment application is adjudicated, the foreign spouse is still eligible to adjust.

Also, a K-1 visa holder who divorced the original K-1 petitioner can still adjust to permanent residence status so long as the adjustment application is based on the marriage to the original K-1 petitioner.

The law does not require that the marriage still exists at the time the adjustment application is adjudicated. In order for a K-1 visa holder to adjust status, the applicant must demonstrate that that he entered into a good faith marriage with the K-1 petitioner within 3 months after entry and was not otherwise inadmissible.

In one case, the foreign fiancé(e) married the K-1 petitioner within 90 days from arrival and filed her adjustment application within the two-year conditional residence period. She divorced her K-1 petitioner within 2 years before the adjustment application was adjudicated. She was allowed to adjust status even after their marriage ended in divorce.

In another case, the marriage between the foreign fiancé(e) and K-1 petitioner took place within the 90-day period. They had a child together but were divorced more than 2 years after their marriage. He subsequently married another U.S. citizen. His adjustment application was denied on the ground that it was not adjudicated within two years from marriage.

On appeal, the Board of Immigration Appeals found the foreign spouse eligible to adjust status on the basis of his marriage to the original K-3 petitioner even if their marriage had terminated.

The law specifically precludes the K-1 visa holder to adjust status on the basis of marriage to any other U.S. citizen or in any other manner other than the marriage to the original K-1 visa sponsor. In a string of cases, the K-1 visa holder was barred from adjusting status on the basis of other visa petitions such as an approved I-140 petition, an approved family petition filed by a sister and an approved family petition filed by a U.S. citizen spouse other than the original K-1 petitioner.

 

 

(Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For more information, you may log on to his website at www.seguritan.com or call (212) 695-5281.)