New York Lawyer's Legal Updates

Adjustment Options For K-1 Visa Entrants

Author: VAWA attorney Alena Shautsova

A K-1 visa is issued to a fiance of the U.S. citizen who is willing and able to get married to the U.S. citizen within 90 days of arrival. If everything goes well, the couple gets married and later, they apply for adjustment of status for the non-citizen. The marriages by K-1 visa holder and a U.S. citizen are subject to Marriage Fraud Immigration provisions, and conditional residency requirements. It means that within 90 days prior to the second anniversary of the "green card" status, the beneficiary will have to submit a joint petition to remove the condition. This scenario works only when everything goes according to the couple’s plan.

However, life is life and not everything and not always develops as we plan it. The situations differ, and that is why it is best if a K-1 visa entrant speaks to an attorney. However, I will cover here common scenarios.

1. A K-1 visa entrant did not marry U.S. citizen within 90 days and remained in the U.S. This is one of the worst case scenarios because the law says that a K-1 visa holder who did not get married within 90 days of entry to the petitioning US citizen, cannot change her/his status to a non-immigrant or immigrant status in the US. The only option for such a person would be to file for asylum if the person qualifies for it, of course.

2. A K-1 visa entrant did marry their U.S. citizen fiance, but the U.S. citizen appeared to be abusive and the permanent resident documents were not submitted by / with the U.S. citizen. In this case, the K-1 visa holder can self-petition him/herself under VAWA provisions. It will not be easy to receive a permanent residency this way, because USCIS holds a position that I -360 should not be the basis for adjustment for the K-1 holders. At the same time, if the abuser is the U.S. citizen who sponsored the fiance, the USCIS may still grant adjustment K-1 holder’s status. Recent BIA decision support this position.

3. A K-1 visa entrant married the U.S. fiance and got divorced. Can he/she adjust? Maybe. It depends on the length of the marriage, and if the U.S. citizen will be willing to execute the I -864 form affidavit of support and if the fiance finds a different exception to the public charge rule.

4. The K-1 visa entrant did not marry the U.S. citizen fiance but later got married to a different U.S. citizen and qualified for VAWA. Unfortunately, K-1 entrant will not be able to adjust here, because the abuser is not the original fiance visa petitioner.

It must be noted that the implementation of law regarding K-1 visa holder’s adjustment of status is still being shaped. However, one should remember, that he/she always has an option of leaving the U.S. and applying for a waiver of unlawful presence (which works of course only in the cases of an adjustment based on a new marriage with a U.S. citizen).

05 November 2015
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