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Non-marriage by K-1 Fiancé(e) bar to adjustment of status

DID YOU KNOW that a K-1 fiancé(e) visa holder who fails to marry his or her U.S.-citizen spouse after entry to the United States is barred from seeking an adjustment of status to that of a lawful permanent resident of the United States. The relevant statutory scheme and regulations require that a K-1 nonimmigrant must marry his or her U.S.-citizen fiancé(e) spouse within ninety days after admission. Strict compliance with this requirement will enable the K-1 and dependent minor children to adjust status as conditional residents, which conditions will be removed upon filing a timely petition to remove conditions of residence (within 21 to 24 months after the granting of the conditional residence). Adjustment of status is permissible even if the marriage takes place outside of the ninety days as long as the marriage is to the U.S. citizen who originally filed a petition for the K-1 with the United States Citizenship and Immigration Services.

In the event that the marriage does not occur, however, the K-1 and his or her minor children (K-2s) must leave the United States. Failure to do so may result in the K-1 and K-2s being subjected to removal (formerly deportation) proceedings. Simply stated, the K-1 visa holder may not seek to adjust status (secure a green card) in the United States on any basis other than through the relationship to the U.S.-citizen petitioner. Accordingly, the K-1 visa holder who does not adjust based on marriage to the U.S.-citizen spouse will not be able to seek an adjustment of status at a later time by virtue of an approved I-140 petition or through marriage to another U.S. citizen.

In the case of a marriage to a U.S.-citizen spouse who was not the petitioner for the K-1 fiancé(e) visa, adjustment of status may be available to the K-1 only after departure from the United States and approval of a waiver while abroad based on a showing of extreme hardship to the U.S.-citizen spouse, minor child or parent. As this form of relief is extremely rare, consultation with an attorney skilled in these matters is highly recommended.

WE ARE HERE TO HELP! With the assistance of our immigration attorneys, you do not have to navigate the complex field of immigration law on your own. Please contact us with any immigration questions you may have.

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