When a foreign national comes into the United States on a K-1 fiancé visa, the foreign national expects to marry the K-1 visa petitioner within 90 days of entering. Once married, the foreign national expects to adjust status to become a lawful permanent resident through the K-1 visa marriage.
Unfortunately, life does not always happen the way it is planned. Many couples’ relationships breakdown after the K-1 beneficiary arrives in the United States, and before they get married. The couple realizes that they are not meant for each other.
If this happens, a K-1 fiancé visa entrant must confront his or her immigration status dilemma. Ninety days after entering the United States, K-1 visa status expires. At that point, the unlawful presence clock begins to click. Six months of unlawful presence makes a person inadmissible to the United States for three years after departing. One year of unlawful presence means an individual will not be allowed into the United States for 10 years after departing.
Often times, a K-1 visa entrant remains in the United States and does not know, or understand that they are accruing unlawful presence. They know that their initial plans fell through, and believe that they will be able to fix their immigration status once they get their life back in order. Often, it is not possible (or easy) for K-1 entrants to do so.
Absent a few exceptions, a person in K-1 status cannot adjust status and become a green card holder except through the U.S. citizen who petitioned for the K-1 visa. If a couple does not marry, it is often best for the K-1 beneficiary to leave the United States. If he or she wishes to come back to the US, he or she will need to obtain another visa type before doing so. Leaving is not necessarily the only option, however a person’s specific circumstances must be reviewed by an immigration attorney before a decision not to leave is recommended.
Often, a few years after entering, a K-1 entrant will marry a different U.S. citizen and will then attempt to use their new marriage to become a green card holder. Unfortunately, the USCIS has consistently ruled that K-1 visa holders cannot adjust status except through marrying and adjusting status through the original K-1 visa petitioner. Recently the Second Circuit (the Federal Court encompassing New York City) agreed with the USCIS (Caraballo-Tavera v. Holder).
This restriction includes the sons and daughters of K-1 visa entrants (and K-3 entrants). The Board of Immigration Appeals (BIA) has determined that a K-4 visa applicant could not adjust status based upon her marriage to a U.S. citizen. The BIA ruled that the applicant could not adjust status because she had entered the United States on the K-4 visa (K-4 visas are given to children of K-3 entrants). Due to the restrictions on the K-4 visa holder, the applicant could not adjust status except through the K-4 relationship.
If you are a K-1 visa entrant into the United States, and did not marry your K-1 visa petitioner, please contact a fiancee visa lawyer to discuss your options immediately. There may be a few options available to you, and (more importantly) there are certain actions that you can do to maximize your future immigration options.