K-1 fiancée: Adjusting status after a separation or divorce

COMING to the United States as a K-1 Fiancée is an exciting and joyous occasion.  After typically waiting many months to be together, couples are finally reunited and ready to embark on a new life together.  Most couples bask in the glow of their new marriage and smoothly navigate through the immigration process of obtaining a green card.  But, because the transition to married life and to being together on a daily basis can certainly have its challenges, many other couples may not have such luck and may find themselves not wanting to remain in the marriage.

This can clearly cause significant problems for the spouse who must change their fiancée visa to a green card.  Individuals faced with this situation, however, need to realize that there may still be possibilities for obtaining their green card.  This possibility, however, is only available if the individual actually married their K-1 petitioner.  If no marriage has taken place, then an individual generally has no ability to legalize their status in the US.  The few exceptions available to those who do not marry their K-1 petitioner are those who may have been subjected to abuse, certain crimes, or were trafficked to the US.

As indicated, K-1 Fiancées who in fact married their K-1 petitioner continue to be eligible to become a lawful permanent resident even if they have already separated, or even divorced, their K-1 petitioner.  This is the case whether the separation occurs before or after the adjustment application is filed.

This was made clear in a 2011 court decision, Matter of Sesay, 25 I&N Dec. 431 (BIA 2011).  The case involves a Sierra Leone citizen who entered the US as a K-1 fiancé.  He had met his fiancée while studying in Ethiopia.  After he entered the US, he and his wife got married within the required 90-day period.  Mr. Sesay, however, only filed his adjustment of status application about 14 months after his entry.  The immigration service erroneously denied his application, which they later admitted to during removal proceedings.  Unfortunately, Mr. Sesay and his wife got divorced about 7 months after the erroneous denial of his adjustment of status application.

About a year after removal proceedings had been initiated, Mr. Sesay got married again to another US citizen.  In removal proceedings, Mr. Sesay submitted a second adjustment of status application based on his second marriage.  Mr. Sesay also renewed the first adjustment of status application based on his first marriage.  The judge denied the adjustment application based on the second marriage, ruling that a K-1 fiancé cannot adjust through any other basis except through the marriage to the K-1 petitioner.  The judge also ruled that he had no authority to review the adjustment application based on the first marriage since Mr. Sesay and the K-1 petitioner had already divorced.

Mr. Sesay appealed the judge’s decision, which the appellate court granted, ruling in favor of Mr. Sesay.  The court determined that he continued to be eligible to adjust status based him having married his K-1 petitioner.

The rationale of the appellate court is that Mr. Sesay fulfilled the requirements of the immigration laws when he married the K-1 petitioner within 90 days of his entry.  Therefore, even though he and the K-1 petitioner were already divorced for nearly 8 years, he continued to be eligible for permanent residency so long as he could establish that the marriage between he and the K-1 petitioner was legitimate and bona fide.

The USCIS recently issued a memo confirming the court case and instructing its officers to approve bona fide adjustment of status applications when a K-1 Fiancée has married the K-1 petitioner.  The memo, however, provides further clarification that the K-1 Fiancée can only successfully adjust status if the K-1 petitioner submits a valid Affidavit of Support.  Accordingly, that regrettably does mean that the cooperation of the K-1 petitioner is needed in order to fulfill the Affidavit of Support requirement.  The only exception to this is if the K-1 Fiancée is exempt from the Affidavit of Support requirement by having earned or can be credited with 40 qualifying quarters of work by the Social Security Administration.

Individuals who or may be are faced with this situation must understand that it is vital to document the legitimacy of their relationship.  Individuals must be able to prove that they have in fact lived together with their petitioning spouse through items such as joint bank accounts, credit cards, rental agreements, utility bills, insurance policies, pictures, etc.  When faced with the emotional turmoil of the break-up of a marriage, many react unconsciously and fail to secure the papers needed to prove their good intentions and the bona fide nature of their relationship.  Although difficult, individuals must make sure to strengthen their odds of successfully adjusting status by securing the evidence needed to prove that they were in a legitimate and bona fide relationship.  Physically securing the documents is often more difficult after separation, so it may be wise to do so beforehand.

The court decision recognizes the difficult realities of marriage today.  It allows individuals who have already been traumatized by an unsuccessful marriage to still seek the opportunities available in the US.

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For further information, please schedule an appointment with an attorney at Aquino & Loew, Certified Immigration Law Specialists; (888) 797-1140 or (626) 799-3089; [email protected].  Please also visit Aquino & Loew at www.aquinoloew.com and connect with us on Facebook and Twitter.  Aquino & Loew also handles family law and criminal matters.  Providing Personalized Service Nationwide & Abroad Since 1996.

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