In a recent precedent (binding) decision, the Board of Immigration Appeals (BIA) ruled that a K-1 Fiancé(e) visa holder who married his or her American petitioner, may still adjust status (get a green card in the US) even if the couple divorced before the adjustment of status application is adjudicated.
This is great news for people who entered the US on a K-1 visa and married their American citizen spouses, but, while waiting for the CIS to process their adjustment of status application, the marriage falls apart and ends in divorce. This BIA decision allows them to nevertheless obtain a green card despite that divorce. This case is especially helpful, because the only way a K-1 fiancé(e) can get a green card in the US is through the American who filed the K-1 petition. The K-1 fiancé(e) cannot change status (i.e. change to an H-1B worker or student visa), nor get a green card through a marriage to a different American.
In that particular case, the person was issued a K-1 visa in February 2000. He entered the US in April 2000 and married the American citizen petitioner later that month. In June 2001, he filed an adjustment of status application (Form I-485) with the Legacy INS.
Although it truly was a good faith marriage (the couple even had a child together), the marriage eventually ended in divorce in June 2003, before the USCIS could adjudicate (act on) his adjustment of status application. The CIS eventually denied the adjustment of status of application because the K-1 fiancé was no longer married to the petitioner. He was placed in deportation proceedings, and the Immigration Judge (IJ) found the he was not eligible for adjustment of status because he was no longer married to the petitioner. He then appealed to the BIA.
After examining and reviewing the history of the laws relating to K-1 fiancée visa holders, the BIA concluded that a fiancé(e) visa holder who timely marries the petitioner (i.e. within 90 days of entering the US) remains eligible to adjust status even if the marriage ended in divorce.
The BIA emphasized that is critical to the fiancée’s eligibility that he or she demonstrate that the marriage, at its inception, was in good faith (not “fixed” or simply a marriage of convenience). Therefore, this case does not apply to people who never married their American petitioner, or who cannot show that the marriage was real (i.e. never lived with the American, have no supporting documents, pictures, or they paid the American to petition them, etc.)
In conclusion, if you entered the US on a fiancé(e) visa, married your American citizen petitioner within 90 days, and filed for adjustment of status, but got divorced before receiving your green card, then I would strongly suggest that you seek the advice of a reputable attorney, who can determine if your situation is similar to this BIA case. If it is, then there may still be hope in obtaining your green card, even though you are now divorced from your petitioner.
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