11 Jan 2023 Is There Hope For A Fiancée (K-1) Who Divorces?
The K-1 (fiancée) visa is Cupid’s visa, or the visa of love. It is designed for U.S. citizens to petition the “love of their life” for a non-immigrant (K-1) visa, to come to the U.S., 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 U.S. is through the U.S. 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 U.S., such as marrying a different U.S. citizen or being petitioned by an employer or a U.S. citizen child over 21 years of age. In such cases, they would have to depart the U.S. 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 they are now a widow.
But is there hope for a K-1 (fiancée) who enters the U.S., marries the U.S. citizen petitioner, files for adjustment of status, but then the marriage fizzles and the U.S. 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 U.S.
If you entered the U.S. on a K-1 visa and the U.S. 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 U.S. 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 U.S. 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 U.S. citizen petitioner not to withdraw his affidavit of support.
If you entered the U.S. 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 U.S. despite a divorce. Otherwise, if you find a different way to be petitioned, such as a new U.S. citizen spouse, a 21-year-old US citizen child, etc., you would have to obtain a provisional waiver, leave the U.S., 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 U.S. despite divorce.
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