Fiancé’s Eligibility to Adjust Status After Divorce
By Reuben S. Seguritan
January 11, 2017
The K-1 Visa or fiancé(e) visa is a single entry visa that allows the foreign fiancé(e) of a US citizen to enter the United States solely to marry the US citizen within 90 days from entering the United States. The fiancé(e)’s “minor child” may also enter the U.S. on a K-2 visa and apply for permanent residence just like the fiancé(e) parent.
First, the U.S. citizen must file a petition (Form I-129F) with the USCIS along with evidence of the relationship with the foreign fiancé(e), including evidence that the two have met in person within the last two years. The USCIS may waive the in-person requirement if it would cause extreme hardship to the petitioner or would violate strict and long established customs of the beneficiary’s foreign culture or social practice. The couple also must both be free to marry and have a bona fide or good faith intention to marry. If the petition is approved, the foreign fiancé(e) will apply for the K-1 visa at the U.S. consulate or embassy abroad.
Second, the parties must actually get married within 90 days, or else the K-1 fiancé(e) would be required to depart the United States. The minor child of the fiancé(e) would likewise be required to leave the United States if the marriage does not occur.
If the parties do get married within 90 days, the foreign spouse can proceed to the third step which is the application for adjustment of status. Under the law, the foreign spouse can become a permanent resident only as a result of marriage to the U.S. citizen who filed the K visa petition.
In one case, a foreign fiancé had entered the United States on a K-1 visa and married the US citizen petitioner within 90 days of arriving in the United States. He filed for adjustment of his status within two years of his marriage with the former Immigration and Naturalization Services (INS). Then the couple divorced. The INS was only able to adjudicate his application after more than two years of marriage and while the applicant was no longer married to the petitioner. His application was denied so he appealed.
The Board of Immigration Appeals (BIA) ruled that a fiance?(e) visa holder may be granted adjustment of status even if the marriage to the fiance?(e) visa petitioner does not exist at the time that the adjustment application is adjudicated, if the applicant can demonstrate that he or she entered into a bona fide marriage within the 90-day period to the fiance?(e) visa petitioner. The BIA found that he married the US citizen within 90 days of arriving in the United States and in good faith and hence, he was allowed to file his application for adjustment of status before the Immigration Judge.
The fiancé(e)’s “minor child” may also enter the U.S. on a K-2 visa and apply for permanent residence just like the fiancé(e) parent. The court said that the term “minor child” means a “child” or an unmarried person under 21 years of age.
But what if the minor child reaches the age of 21? How will he or she get a green card? The BIA held in a case that as long as the K-2 derivative child entered the US before reaching age 21, he or she is eligible to adjust status, even if by the time the government adjudicates the case, the K-2 derivative child is no longer a minor. This decision is beneficial to the children of foreign fiancé(e)s because this means that their eligibility for a green card will not be affected by government delay. It is unfair for these children to lose the chance to become lawful permanent residents and be separated from their family in the US simply because they aged out before the USCIS adjudicated their adjustment applications.