In the event of a divorce, foreign nationals who entered the U.S. on a K1 fiancé visa can still become permanent residents as long as they were married within 90 days of entry and have an I-864, Affidavit of Support, that hasn’t expired.
K1 Adjustment of Status
Generally, when foreign nationals enter the country through a K1 fiancé visa, they need to marry their partner within 90 days of arrival. After getting married, these individuals will be able to adjust their status to gain permanent residence.
However, sometimes marriages don’t last. In some cases, couples may get a divorce and K1 Adjustment of Status is still pending. In others, the divorce process may begin before individuals even file for Adjustment of Status.
Case Law Allowing for Adjustment of Status After a Divorce
There have been court cases that have enabled K1 fiancé visa holders to apply for Adjustment of Status even during or after a divorce.
The Ninth Circuit Court of Appeals in Choin vs. Mukasey
In 1998, Yelena Choin entered the U.S. as the fiancée of an American citizen. Her two children also entered on K-2 visas. She later married her fiancé in 1999, after which she and her children applied for Adjustment of Status. However, on April 9, 2001, the couple divorced.
The USCIS denied Yelena’s application due to the divorce and initiated removal proceedings. In addition, an immigration judge denied Yelena’s application for adjustment, with which the Board of Immigration Appeals (BIA) agreed. Yelena then filed a Motion for Reconsideration, which the BIA also refused to accept.
The USCIS made their decision based on the fact that Yelena’s Adjustment of Status application was unable to be approved because the divorce took place before the two-year period had expired and adjudication of the Adjustment of Status hadn’t taken place.
The court, on the other hand, determined that the regulations in place don’t prevent the approval of Adjustment of Status applications from K1 spouses simply because a divorce took place while the application was pending. However, the decision only applied to the 9th circuit court, which covers western states and Hawaii.
The BIA Decision for Alfred Sesay
In April 2000, Alfred Sesay was able to enter the U.S. as a foreign fiancé of an American citizen. Shortly after his initial entry into the U.S., the couple got married. Then in June 2001, Sesay filed for Adjustment of Status, after having a child in the spring of that year.
Sesay began to experience issues with his immigration status when the USCIS denied his Adjustment of Status application by mistake. In October 2003, Sesay received a Notice to Appear from the government as immigration began to implement removal proceedings. In November that year, Sesay then divorced his spouse. He then married another American citizen, and had two applications for Adjustment of Status as removal proceedings took place. The first application was the renewal of his first application involving the K1. Filing a fiancé visa the second time around involved the filing of an I-130 that his second spouse filed.
The immigration judge involved in the case wound up denying both applications. The USCIS argued once more that it is unable to approve Adjustment of Status requests because the marriage ended prior to the adjudication of the application due to the inadmissibility of the applicant. Additionally, the agency argued that it could not approve the Adjustment of Status because it didn’t undergo adjudication within the two-year conditional period.
Despite the denial by the immigration judge and USCIS, the BIA determined that K1 spouses can obtain lawful permanent resident status via Adjustment of Status, regardless of whether a divorce took place. It’s worth noting that this is only the case if the couple married within the 90 days of the visa holder entering the country and they are able to prove that the marriage was valid. Ultimately, the court decided that the two-year conditional period didn’t apply to adjudication or filing of an Adjustment of Status application.
Termination of Marriage Waiver
If conditional residents obtain a two-year green card via marriage, the couples typically file a joint petition in the form of I-751, Petition to Remove Conditions on Residence, with a 90-day window to do so. Upon approval, the U.S. Citizenship and Immigration Services (USCIS) considers individuals lawful permanent residents and provides them with a 10-year green card.
If conditional residents get an annulment or divorce before the two-year green card period, spouses can file a I-751 waiver after the divorce, which removes conditions on residence following a divorce or another event that prevents individuals from filing a joint petition.
When filing this form, couples need to provide proof of some elements.
Proof of a Good Faith Marriage
If marriages end because of death or divorce, individuals must prove that the marriage began as a good faith marriage, even if the citizen spouse was abusive to the K1 fiancé visa holder. This means that spouses need to show that they had honest intentions when getting married.
In other words, USCIS wants to confirm that individuals have entered a marriage for love and not simply the chance to immigrate. Good faith marriage entails getting married out of a love for one another and a desire to build an honest life together. Otherwise, the marriage may be considered a sham or fraud marriage if a spouse simply married to successfully complete the immigration process.
USCIS doesn’t investigate people’s private lives, which is why those filing Form I-751 need to provide evidence that shows their marriage was in good faith. This evidence could include children’s birth certificates, wedding records, and joint financial records.
More Burdens of Proof
If single petitioners don’t file jointly with the spouse they were with when they gained conditional residence, the petition could be alarming to the government. Individuals will experience a burden of proof to effectively show that they entered their marriage in good faith and that the marriage ended without the petitioner being at fault.
On Form I-751, multiple options are available for individuals who aren’t filing jointly. These options could include:
- Option A: This states that the applicant entered the marriage in good faith, but annulment or divorce caused the marriage to end.
- Option B: The individual entered the marriage in good faith, but the other spouse was either physically abusive or exerted “extreme cruelty” to the applicant.
- Option C: The individual’s termination of status and removal from the U.S. would cause them to face extreme hardship.
Other Evidence Required
In addition to evidence proving that a marriage was in good faith, individuals will need to provide other evidence. This includes:
Evidence of a No-Fault Divorce
If a divorce took place because of a mutual decision to end the marriage or certain irreconcilable differences, I-751 applicants can provide a personal statement and evidence proving that this was the case. For example, some marriages involving irreconcilable differences may pertain to disagreements over where to live, whether to have children, or decisions around who should work and which occupation they should take. Evidence proving this could include marriage counseling records.
Evidence of the Ex-Spouse’s Fault
The spouse who is a U.S. citizen may be at fault in some cases. Abandonment, abuse, adultery, imprisonment, or impotency could be grounds for a divorce. Annulment or divorce petitions detailing these grounds could help support the applicant’s claims.
If individuals want assistance when going through this process, they may benefit from working with a Chicago spouse, fiancé, and K1 visa attorney.
Ultimately, K1 visa holders can still file for Adjustment of Status even after a divorce takes place, as long as they meet the specific requirements in place.