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The Impact of Changes in Family Status on an Alien's Immigration Process Such as
Divorce from, Death of, or Abuse by a USC or LPR Spouse
This information is provided in the most general of terms and is not intended to address any specific case. Please read the Terms of Service before continuing.
Part B ~ At the Entry Stage Before Applying For Adjustment of Status
Q: I arrived on a K-1 visa, married the petitioner within 90 days but the marriage ended in divorce before we applied for adjustment of status, can I remain in the USA?
A: If the marriage is terminated by divorce before the couple apply to adjust to permanent resident status, the beneficiary and any derivative beneficiary (K-2) will not be eligible for permanent resident status through the former marital relationship. The USCIS requirement for an alien that entered on a K-1 visa is that marriage be concluded to the original petitioner within 90 days and that adjustment of status is possible only through the initial petitioner.
Q: I arrived on a K-1 visa. Things didn’t work out and I didn’t marry the US citizen petitioner within 90 days. Can I remain in the USA?
A: If the alien were to remain beyond the expiry date, he or she will be out of status. The terms of the K-1 visa are to provide the alien to enter the USA in order to conclude marriage to the petitioner within the 90-day period. If a marriage is not going to occur with the petitioner, the alien is to leave the country prior to the expiry date of the visa.
Q: I came to the US with a K-1 (fiancé) visa, but the relationship was not working. I married another US citizen. How do I adjust my status to permanent resident?
A: The restrictions of the K visa call for the alien beneficiary to marry the original US citizen petitioner in order to be eligible for adjustment of status. Since the alien did not marry the petitioner, the alien cannot adjust status and must return to his or her native country.
Q: I arrived on a K-1 visa, married within 90 days, but have not adjusted status. It looks as if we will divorce. Can I remarry and adjust status through another US citizen spouse?
A: An alien that entered the USA on a K-1 visa may not adjust status to permanent residence by any means other than through the marriage to the original petitioner.
Q: I entered on a K-3 visa, but the marriage is failing, can I remain in the USA?
A: The K-3 visa permits an alien, married to a U.S. citizen, to enter the United States and await approval of the I-130 immigrant petition filed by the U.S. citizen spouse. An alien that came to the USA on a K-3 visa is not eligible to change status to any other nonimmigrant status, nor may he or she adjust status to permanent residence by any means other than by way of the marriage to the US citizen petitioner/spouse.
Q: I have not yet adjusted status, but my US citizen spouse has initiated divorce, will my K-3 status remain in effect for 2 years?
A: No. As a K-3, authorized stay will expire thirty days after divorce from the United States citizen petitioner.
Q: What if the petitioner/spouse refuses to file the adjustment of status application?
A: Typically, the marriage-based petition requires that the parties be in a viable marriage. But if the spouse (either an US citizen or LPR) refuses to file the adjustment of status application or withdraws the application prior to its adjudication, provided the alien meets the eligibility requirements, he or she can self-petition as an abused spouse under provisions of VAWA, without the help of the spouse. Lack of physical battery does not necessarily preclude a self-petition as an abused spouse under the very liberal immigration laws. A consultation with an immigration attorney is strongly advised. (More on abuse later in the FAQs)
... continue to Part C.
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