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Restriction on Adjustment of Status of Fiancé

A special kind of visa known as K-1 is available to allow a foreign fiancé(e) of a U.S. citizen to enter the U.S. for the purpose of marrying the U.S. citizen. In this type of situation, a tourist visa is not appropriate since the foreign fiancé(e)’s intent is to reside in the U.S. permanently after marriage.

But marriage alone does not confer permanent resident status. The fiancé(e)’s entry on the K-1 visa is only the start of a process to a green card, which comprises four main steps.

First, the U.S. citizen must file a petition (Form I-129F) with the USCIS along with evidence of the relationship with the foreign fiancé(e), including evidence that the two have met in person within the last two years. The couple also must both be free to marry and have a bona fide or good faith intention to marry.

If the petition is approved, the foreign fiancée will apply for the K-1 visa at the U.S. consulate or embassy abroad. The K-1 visa is a single entry visa that allows the foreign fiancé(e) to enter the U.S. to marry the visa sponsor within 90 days of arrival.

Second, the parties must actually get married within 90 days, or else the K-1 fiancé(e) would be required to depart the United States.

If the parties do get married within 90 days, the foreign spouse can proceed to the third step which is the application for adjustment of status. Under the law, the foreign spouse can become a permanent resident only as a result of marriage to the U.S. citizen who filed the K visa petition.

The foreign spouse may adjust only to a conditional lawful permanent resident (LPR) status. On the second anniversary of the green card, the spouses go through the fourth step which is the filing of the joint petition to remove the condition on the foreign spouse’s LPR status. This two-year period serves to satisfy the government that the marriage was entered into in good faith and not for immigration purposes.

If joint filing of the petition is no longer possible, such as when the marriage has ended in divorce, the foreign spouse can file for a waiver of the joint filing requirement. If the waiver is granted, the condition on the foreign spouse’s LPR status is removed. On the other hand, if it is denied, the foreign spouse loses LPR status and gets placed under removal proceedings.

What happens if the marriage does not survive the 2-year period and the foreign spouse’s joint petition waiver is denied? A recent decision from U.S. Court of Appeals for the Second Circuit highlights a specific restriction on those who were admitted to the U.S. on a fiancé visa: they may not adjust to LPR status except on the basis of marriage to the K-1 visa sponsor.

In the case Caraballo-Tavera v. Holder, the foreign spouse had gone through the first three steps described above. But since he and his U.S. citizen wife had already divorced, he filed the petition to remove the conditions by himself and sought a waiver of the joint filing requirement.

The USCIS denied the waiver request, finding that he failed to prove the bona fides of his marriage. Left without lawful status, he was placed under removal proceedings.

At that time, he was already the beneficiary of an approved immigrant visa petition by his U.S. citizen daughter. He argued before the immigration judge that he was eligible to adjust status on that basis.

The immigration judge disagreed, as did the Board of Immigration Appeals. The Second Circui Court of Appeals ruled that he was ineligible to adjust status through his U.S. citizen child or on any basis other than marriage to the original K-1 visa sponsor, his ex-wife.

The court in a footnote explained however that this does not mean that an alien who fails to comply with the K-1 process is forever barred from getting legal immigrant or nonimmigrant status in the U.S. under otherwise applicable law.

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