Immigration Issues New Case Concerning Fiancé(e) Visas!

The fiancé K-1 nonimmigrant visa is for the foreign-citizen fiancé(e) of a United States citizen. The K-1 visa permits the foreign-citizen fiancé(e) to travel to the United States and marry his or her U.S. citizen sponsor within 90 days of arrival. The foreign citizen will then apply for adjustment of status to a permanent resident (LPR) with the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS).

The first step to obtaining a K-1 nonimmigrant visa is filing a I-129F form, Petition for Alien Fiancé(e). In order to receive a K-1 visa your marriage must be valid, in other words you and your fiancé(e) must have a genuine intent to establish a life together and the marriage is not for the sole purpose of gaining an immigration benefit.

If you have already married, plan to marry outside the United States, or your fiancé(e) is already residing legally in the United States, your spouse or fiancé(e) is not eligible for a fiancé(e) visa. In order to be eligible:

  • You must be a U.S. citizen

  • You and your fiancé(e) are both legal free to marry (meaning you both are legally able to marry in the United States and any previous marriages have been legal terminated by divorce, death, or annulment)

  • You and your fiancé(e) met each other in person at least once within the 2-year period before you file your petition

In a decision dated July 7, 2017 on the Matter of Sothon SONG, Respondent the board of immigration appeals reviewed an immigration judge’s opinion. On November 25, 2011 a native and citizen of Cambodia entered the United States on a K-1 nonimmigrant fiancée visa and married her United States citizen fiancé, the visa petitioner, within 90 days. On February 3, 2012, the respondent filed an application for adjustment of status with the USCIS, along with a form I-864 (Affidavit of Support) completed by the petitioner. While the application was still pending, the marriage fell apart, and on July 10, 2012, the petitioner wrote to the USCIS to withdraw his affidavit of support. By November 21, 2012, the USCIS denied the respondent’s adjustment application, finding that was she inadmissible under section 212(a)(4) of the Act, 8 U.S.C. § 1182(a)(4) (2012), as an alien who is likely to become a public charge. On December 20, 2012 the couple divorce and the DHS consequently, initiated removal proceedings.

The respondent renewed her application for adjustment of status and submitted a new affidavit of support from a family friend before the Immigration Judge. Although the Immigration Judge found that the respondent’s divorce did not declare her ineligible for adjustment of status, she was still required to provide an affidavit of support from the petitioner, her former husband, to establish that she was admissible to the United States. The respondent could not provide the affidavit of support and the Immigration Judge concluded on November 19, 2018 that she was inadmissible as an alien who is likely to come a public charge and denied her adjustment application.

To conclude, whether an applicant for adjustment of status who was admitted on a valid K-1 nonimmigrant visa, fulfilled the terms of the visa by marrying the petitioner, and was later divorced. He or she must still submit an affidavit of support from the petitioner to establish that he or she is not inadmissible as a public charge.

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