Filing For Divorce On A K-1 Visa Without Adjustment Of Status Will Make It Difficult To Stay In U.S.

If you have arrived in the United States on a K-1 (fiance visa), you are required to marry your petitioner within 90 days.

This gives you and your fiance time to settle in and prepare for your wedding. However, many people realize after living together that their relationship is no longer compatible.

In this case, there are a few options that you need to consider.

Can I Still Get A Green Card If We Divorced Before Adjustment Of Status?

green-card-statusIf you filed for divorce before submitting your adjustment of status, it will be more difficult to get approved for a green card.

The reason is that the adjustment of status is based on your marriage to the U.S. citizen. If this marriage ends in divorce, you have no right to adjust your status to become a permanent resident.

The USCIS will be looking at your case from the perspective of reducing immigration fraud.

If the only reason you moved to the U.S. was to be with your fiance, then a divorce should should result in you going back home right?

However, many immigrants feel that they have sacrificed their life back home to make a journey to the U.S. for their spouse and should not be punished if it does not work out.

Both sides are valid but the USCIS will scrutinize your case more due to a quick divorce shortly after arriving.

Will I Be Denied A Green Card If I Self-Petition For Adjustment Of Status?

There are a few ways that you can self-petition without your spouse:

  1. VAWA due to abuse – if you have been abused by your U.S. citizen spouse, you can file for VAWA. Once VAWA is approved you can then file to self-petition your adjustment status. [Evidence needed to file for VAWA]
  2. Evidence of Bona Fide Marriage – if the marriage ended due to no fault of your own, you may be able to file for adjustment of status if you have evidence of a bona fide marriage. [Evidence needed to show bona fide marriage]
  3. Extreme hardship waiver – you need to prove that a qualifying relative (a member of the immigrant-applicant’s immediate family) who is a U.S. citizen or permanent resident would suffer extreme hardship if the immigrant applicant were to be denied entry or removed from the U.S. [File form I-360 waiver]

appeal-denied-vawaIt will not be easy to file for adjustment of status alone. There is a high likelihood that you will receive a request for evidence, denial or an interview.

If you are denied adjustment of status based on any of the three options above, you can file an appeal with an immigration judge. Note that once you are denied you are placed in removal proceedings (deportation).

If the immigration judge denies your appeal, the last option to appeal is with the Board of Immigration Appeals. The BIA reviews the decisions of the U.S. immigration courts, some decisions of U.S. Citizenship and Immigration Services, and immigration violation arrests by U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement.

If My Self-Petitioned VAWA Case Was Denied, What Are My Options?

A VAWA self-petitioner is an immigrant who in good faith married a U.S. citizen or lawful permanent resident, resided with the spouse in the United States, and “during the marriage… has been battered or has been the subject of extreme cruelty perpetrated by the alien’s spouse.

The denial notice that you receive will explain the options you have to either appeal the decision or to reapply.

It is usually a waste of time to appeal because the immigration judge rarely overturns a decision by the USCIS.

Whether you can refile a VAWA petition will ultimately depend on the basis for the denial. If the VAWA (I-360) was denied for lack of evidence (without prejudice) then USCIS would probably accept a new I-360.

If it was denied for lack of standing (with prejudice) then they probably wouldn’t accept a new I-360, and they would instruct you that your only recourse is to attempt to appeal the previous petition’s denial

Can I Adjust My Status If I Marry A Different U.S. Citizen?

marriage-adjust-statusUnfortunately, the requirement of the K-1 visa is that you adjust based on the original marriage to your petitioner.

You are free to marry anyone you  like after your divorce is final but to adjust your status, you need the person who filed the K-1 visa for you.

The longer you go without adjusting your status the more time you are in the U.S. illegally. This will be problematic because this time will count against you and can result in a ban.

Your best option if you decide to remarry is to return to your home country and allow your new spouse to apply for an CR-1 spousal visa.

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