“FIANCÉE ENTITLED TO GREEN CARD DESPITE DIVORCE”

By Michael J. Gurfinkel, Esq.

Under immigration law, if a person enters the U.S. on K-1 (fiancée) visa, then the only way for that person to adjust status in America is through the U.S. citizen who originally filed the K-1 petition.

I have come across many situations where a person entered the U.S. on a K-1 visa, but the relationship didn’t work out with that American petitioner. They later falls in love with a different U.S. citizen, or found an employer willing to petition them, or a petition by a sibling or parent now has a “current” priority date. However, because they entered the U.S. on a fiancée (K-1) visa, they are not able to adjust status in the U.S. through these other avenues.

Once a person enters the U.S. on a fiancé visa, they must marry the U.S. citizen petitioner within 90 days, and then file for adjustment of status. If they are granted a green card within two years of their marriage, they are given a “conditional” green card, which is valid for two years, at the end of which time, the couple files a “joint petition” to remove the conditions on that green card. If the couple gets into marital difficulties during the two-year conditional residency period, the person is still able to apply for a “waiver” of the requirement of filing a joint petition.

But what happens if the couple gets divorced while their adjustment application is pending, and before the conditional green card is granted? (i.e. the person enters as K-1, gets married, files adjustment of status, but before the initial adjustment interview, the couple gets divorced.)

Recently, the 9^th Circuit Court of Appeals was presented with that very problem: the K-1 applicant entered the U.S., got married to the citizen who filed the K-1 petition, filed an application to adjust status, but after more than 2 years from the date she filed her application for adjustment of status, (and while she was still waiting to have an interview with USCIS), the couple was divorced. The USCIS denied her adjustment of status because of the divorce, and she was put in removal proceedings.

The USCIS argued that a K visa holder was ineligible to adjust status to that of a lawful permanent resident if the marriage ends before the USCIS adjudicates the application for adjustment of status.

However, the Court noted that in this particular case, the USCIS “did nothing about her application [for adjustment of status] for almost two and a half years, and thus she never became a conditional permanent resident and never reached the [final] stage of the process.” The Court noted that the issue was whether the alien’s divorce after over two years of marriage made her ineligible to adjust to conditional permanent residence.

The Court concluded that it found “nothing in the plain language of Section 245(d) suggesting that an application [for adjustment of status] that was valid when submitted should be automatically invalid when the petitioner’s marriage ends by divorce two years later.”

In other words, the Court noted that nothing in the law required “the automatic removal [deportation] of immigrants whose marriages end in divorce while their application for adjustment of status languishes in the agency’s file cabinet.”

If you entered the U.S as a K-1 fiancée, got married, filed for adjustment of status, but before being interviewed for conditional resident status, got divorced, I would suggest you seek the advice of a reputable attorney, who can analyze your situation and determine if this 9^th Circuit case could apply to your situation.