Hope for a fiancée (K-1) who divorces

IMMIGRATION CORNER - Michael J. Gurfinkel - The Philippine Star

The K-1 (fiancée) visa is Cupid’s visa, or the visa of love. It is designed for US citizens to petition the “love of their life” for a non-immigrant (K-1) visa to come to the US, marry within 90 days,  apply for adjustment of status (or green card) and thereafter live happily ever after.

The K-1 (fiancée) also has very strict limitations and requirements. If a person enters on a K-1 visa, the one and only way they can get a green card in the US is through the US citizen who originally filed the K-1 petition. If the marriage does not work out, they cannot find a different way to get a green card in the US, such as marrying a different US citizen or being petitioned by an employer or a US citizen child over 21 years of age. In such cases, they would have to depart the US and apply for their immigrant visa abroad.

Another strict limitation or requirement for K-1 visa holders is the petitioner must submit an affidavit of support (Form I-864) or the case will be denied on public charge grounds. This is the case even if someone else is willing to step in and submit an affidavit of support as a substitute sponsor. The only exceptions to the requirement of having an affidavit of support by the petitioner are abuse and death. In other words, the K-1 visa holder was the victim of domestic violence or the petitioner died, and she is now a widow.

But is there hope for a K-1 (fiancée) who enters the US, marries the US citizen petitioner, files for adjustment of status, but then the marriage fizzles out and the US citizen files for divorce? The answer is yes; there could be hope if certain requirements are met. 

Courts have held that a K-1 visa holder could still adjust status even if the couple divorces, as long as the petitioner does not withdraw the affidavit of support. Therefore, keeping the affidavit of support in place is key in connection with a K-1 fiancée’s ability to adjust status in the US. 

If you entered the US on a K-1 visa and the US citizen is divorcing you, you may want to consider hiring a family law (divorce) lawyer to represent you and protect (or keep in place) the affidavit of support, so as to enable you to adjust status in the US. If you blindly agree to the divorce without making provisions for keeping the affidavit of support in place, then you may lose all hope of getting a green card in the US. In fact, in one case, the Board of Immigration Appeals (BIA) noted there could be several options available if the couple is divorcing:

• The petitioner/sponsor could agree to leave his affidavit of support in place while the K-1 beneficiary’s adjustment application is pending;

• A divorcing K-1 applicant could agree, as a negotiated term in divorce proceedings, not to sue the petitioner/sponsor for breach of his contractual I-864 obligations, which survive divorce. 

In other words, one of the terms of the divorce would be to require the US citizen petitioner not to withdraw his affidavit of support.

If you entered the US on a K-1 visa and the marriage is not working out, you may want to consult with an immigration attorney who could possibly work with a family law (divorce) attorney to protect the affidavit of support and enable you to adjust status in the US despite a divorce.  Otherwise, if you find a different way to be petitioned, such as a new US citizen spouse, a 21-year-old US citizen child, etc., you would have to obtain a provisional waiver, leave the US and apply for your immigrant visa abroad. However, as you can see, there is hope for a K-1 visa holder to still obtain a green card in the US despite divorce.


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