When a foreign national enters the US on a K1 Fiance visa, they must marry within 90 days of arrival, after which they are eligible to file for Adjustment of Status to gain permanent resident status.
What happens if everything doesn’t go as planned? What happens if the couple get divorced while the Adjustment of Status application is pending, or even before the Adjustment of Status application is filed?
While the answer to this important question is not explicitly stated in the regulations, recent case law has clarified the answer – an individual who entered with the K1 visa can become a permanent resident through Adjustment of Status as long as he or she married the US citizen spouse within the initial 90 days after entry and has a valid I-864, Affidavit of Support.
A. Decision Of The Ninth Circuit Court Of Appeals In CHOIN VS. MUKASEY, 537 F.3d 116 (9th Cir. 2008)
1. Facts Of The Case
Yelena Choin was admitted to the U.S. in 1998 as the fiancée of a U.S. citizen, and her two children were admitted in K-2 status. On February 20, 1999, Yelena married her U.S. citizen fiancé, Albert Tapia, and on April 14, she and her children applied for adjustment of status. Almost two years later, on April 9, 2001, five days short of their second wedding anniversary, Choin and Tapia divorced.
Yelena’s immigration nightmare began on August 27, 2001, when the USCIS denied her adjustment application because of the divorce, and placed her in removal proceedings. An Immigration Judge also denied her adjustment application and the Board of Immigration Appeals (BIA) agreed with the IJ. The BIA also denied Yelena’s Motion for Reconsideration.
2. USCIS Arguments
The USCIS based their decision on the fact that Adjustment of Status application could not be approved since the marriage had ended in divorce before the 2-year conditional period had expired and the application for AOS had not been adjudicated. It was argued by the USCIS that a K1 visa holder is ineligible to adjust status to lawful permanent residence if the marriage ends before the USCIS adjudicates the application for his or her K1 adjustment of status if it is outside 2-year period.
3. Opinion Of The Court
The Court found that the regulations do not prohibit the approval of an application for Adjustment of Status from a K1 spouse just because the couple divorces while the AOS is pending. Unfortunately, this decision was only enforceable in the 9th Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Oregon and Washington) and it was unclear if USCIS would adopt its application.
B. Decision Of BIA On In The Matter Of Sesay, 25 I&N Dec. 431 (BIA 2011)
1. Facts Of The Case
Alfred Sesay was admitted to the U.S. in April 2000 as the fiancé of a US citizen, and they got married very soon after. Alfred filed for Adjustment of Status (AOS) in June 2001. The couple had a child in March 2001.
Alfred’s immigration ordeal began when USCIS mistakenly denied the first AOS application. In October 2003, Sesay received a Notice to Appear as removal proceedings were implemented by immigration and by November 2003, he had divorced his first spouse. He subsequently married a US citizen and filed 2 Adjustment of Status applications in removal proceedings – 1 was a renewal of his first application based on the K1 and the 2nd was based on an I-130 filed by his 2nd spouse. Both were denied by the Immigration Judge.
2. USCIS Arguments
USCIS renewed their argument that the AOS cannot be granted if the marriage ended before the application was adjudicated as the applicant is no longer “admissible”. They also argued that since the AOS was not adjudicated within the 2-year conditional period, the AOS cannot be approved.
3. Opinion Of The BIA
The BIA found that a K1 spouse can become a lawful permanent resident through adjustment of status even after divorce as long the couple marries within the 90 days of the K1 spouse entering the U.S. and can prove that the marriage was bona fide. The Court further clarified that it was irrelevant that the adjudication or even filing of the AOS application may be beyond the 2-year conditional period.
The government in the past had long refused to grant adjustment of status for K1 visa recipients whose good faith marriage ended in divorce prior to the adjudication of the adjustment application. These important cases changed that terrible application of the law.
Unfortunately, one hurdle still remains for K1 visa Adjustment of Status applicants who are divorced – Adjustment of Status based on the K1 visa still requires an I-864 from the original Petitioner. USCIS has confirmed as recently as 2015 that the I-864, Affidavit of Support is required and must come from the original US citizen spouse and they will not accept a substitute spouse (K1 visa holders who were abused or suffered extreme cruelty are advised to file the I-360 under VAWA, if eligible, to allow USCIS to waive the I-864 requirement). USCIS has stated, however, that they will accept the I-864 that is signed even after divorce.
Because of the complexity of the issues involved, if you find yourself in this unfortunate situation, talk to an experienced immigration attorney. Schedule A Consultation With Immigration Lawyer Today >>
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