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K-1 Visa: Your Options If Things Go Awry

K-1 Visa: Your Options If Things Go Awry

You might be reading this because your fiancée has petitioned or will soon petition for you to join him/her in the United States through the K-1 Visa. The K-1 Visa (commonly known as the fiancé(e) visa) allows a U.S. citizen to bring a foreign fiancé to the United States in order to get married. The U.S. citizen initiates this process by filing Form I-129F, Petition for Alien Fiancé(e). Once that petition is approved and you (the fiancé(e)) enter the country, you must marry each other within 90 days of him/her entering the U.S. If you and your fiancé(e) marry within those 90 days, you can apply to get lawful permanent resident status by submitting an I-485, Application to Register Permanent Residence or Adjust Status. But what happens if things don’t go as planned? Either you don’t get married within those 90 days or you do get married but things don’t work out with your new spouse.

This depends on what happened after those 90 days.

You Got Married But It Was After Those 90 Days

Luckily, you can still adjust status as long as it hasn’t been too long past the 90-day deadline. However, now you will have to file a Form, I-130 Petition for Alien Relative, which will cost an additional $535. On top of that, you will have to explain the delay in marriage to the immigration officer. The 90-day deadline is in place partially to ensure that the marriage is legitimate and not just manufactured for you to enter the United States. Therefore, going beyond the 90 days will place additional scrutiny on your true intentions. In fact, if you file after the 90 days, immigration officers will assume that your marriage is not legitimate and you will need stronger proof/documentation showing that your marriage is legitimate and that you plan to build a life together.

Even though you are not entirely barred from adjusting status if you marry after the 90 days, it is advisable that you do your best to stick within that deadline. It will save you money, scrutiny, and the headache of having to file additional paperwork. Also, you will technically be unlawfully within the United States after those 90 days. It is unlikely that immigration authorities will target your fiancé(e), but you still want to do your best to avoid this slim possibility.

You Decided Not to Get Married Because of a Change of Heart

Unfortunately, if this is the situation, you will have to return to your home country, preferably before six months beyond your visa expires. If you do not leave before that time period and are caught, you run the risk of being barred from re-entering the United States for three to ten years.

You Do Get Married, but You Divorce Before Your Adjustment Goes Through

This is a little complicated, so we will briefly discuss the facts of an immigration case. This makes for a good example and is the law on the matter.

In 2011, the Board of Immigration Appeals decided a case known as Matter of Sesaythat involves this exact situation. A man from Sierra Leone came to the United States with a K-1 Visa and then married his U.S. citizen girlfriend within the 90 days. However, before he adjusted status, they divorced and removal proceedings were later initiated against him. About a year later, he married a different U.S. citizen, who filed an I-130 to petition him for a green card. When he appeared before an immigration judge, he attempted to defend himself on two prongs:

First, he wanted the judge to allow him to adjust based on his first marriage. This was denied because he was no longer married to that spouse. Second, he wanted the judge to allow him to adjust based on the second marriage. This was denied because he was allowed into the U.S. on a K-1 visa and could only adjust based on marriage to the person who petitioned for his K-1 visa. He appealed these decisions. Here are the final takeaways:

  1. If you enter the U.S. with a K-1 visa and marry the petitioner with actual intent to form a life together, you can adjust status even if you get divorced before your adjustment of status goes through.
  2. You cannot adjust status based on a marriage to a person who did not petition you for a K-1 visa.

The law around K-1 visas and adjustment of status after you enter the United States can be complicated, and it is advisable to get an attorney to assist you to make sure you do not make any mistakes.

To schedule an initial consultation with us today, don't hesitate to contact us at (949) 478-4963.

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