Wednesday, March 23, 2011

BIA says K-1 visa holders remain eligble to adjust status despite subsequent termination of marriage.

On March 17, the BIA handed down an important decision of K-1 fiancée visa holders.  In Matter of Sesay, 25 I&N Dec. 431 (BIA 2011), the BIA held that an alien who enters the United States on a K-1 visa and timely enters into a bona fide marriage with the petitioning spouse, remains eligible to adjust status under INA §245(a) even if the marriage later terminates. 

The K-1 visa category allows an immigrant to enter the U.S. in order to marry his or her U.S. citizen fiancé(e).  The marriage must take place within 90 days of entry.  At that point the K-1 may adjust to conditional permanent resident status.  The conditional nature of the status is removed approximately two years later.  The catch is that K-1's can only adjust status on the basis of their marriage to the U.S. citizen spouse. 

Before the BIA's decision in Matter of Sesay, when a K-1's  marriage ended before filing to adjust status or while the adjustment of status was pending, the K-1 simply lost all rights to permanent resident status.  The simple formula was: No marriage = No adjustment.  With no alternatives available to adjust status, the K-1 was forced to return to his or her home country.  The BIA's decision in Matter of Sesay changed this rule substantially.  Now, where the K-1 enters into a bona fide marriage within the 90 day window ofter entry, the K-1 remains eligible to adjust status even if the marriage is terminated. 

Read the opinion here.

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