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Divorce and K1 Adjustment of Status

Written By The Shapiro Law Group on May 20, 2016

Recipients of a fiancé visa, officially known as a K-1 visa are required to marry only their United States’ citizen petitioner. After the marriage, the foreign citizen must then file for an adjustment of status within 90 days of entering the United States to receive their green card. The applicant will only be given conditional residency for two years. At the end of those two years, a joint petition must be filed by the couple to remove the green card conditions within 90 days of the anniversary of their filing. However, problems arise if the couple divorces before the end of those two years that could jeopardize the foreign citizen’s path to citizenship if the proper procedures are not followed.

When Divorce Happens

A person who is in K1 status may still be able to adjust their status even if their marriage has ended in divorce. The process just becomes a little more complicated because the case will receive more scrutiny than if the marriage had remained in force for the required two years.

Under the Immigration and Marriage Fraud Amendment of 1986, the applicant must be able to prove that they did marry the petitioner within 90 days of entering the United States. They must also prove that the marriage occurred in good faith. This can be accomplished through affidavits supplied by friends and family, in addition to documents detailing joint assets.

As an adjustment of status is granted as an extraordinary relief, it can be denied or granted based on the particular equities and adverse factors of each individual case. Factors that will be examined include:

  • Length of marriage
  • Behavior after the marriage
  • Did the couple live together
  • Reason for divorcing
  • Failure to provide support to minor children

By examining these factors, it can be determined whether the couple married in good faith. If the examiner is satisfied that the marriage occurred in good faith, the adjustment of status will be approved.

Termination of Marriage Waiver

When the marriage ends before the two-year mark, the foreign citizen does not have to wait until the anniversary of filing their fiancé visa to apply for an adjustment of status. Once the divorce has been completed, a termination of marriage waiver can be filed. Upon approval, conditions will be removed from their green card.