K-1 Visa process and Divorce

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You were sponsored by your fiance(e) with a K-1 visa to marry in the U.S. while expecting the best for your future. But, unfortunately, divorces can happen.
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Divorce may happen anytime

1. Before/after filing the I-485 (Adjustment of Status)

2. During the 2-year conditional resident status
(before 10-year GC)

3. After the permanent resident status (after 10-year GC)

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Divorce during the K-1 process is a very difficult subject. It’s painful to experience and may also be a tough legal issue for both you and your ex-spouse.

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Divorce before or after filing the I-485 (Adjustment of Status)

If you’ve married your sponsoring US citizen within 90 days and a divorce happens

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Before filing the Adjustment of status (I-485)

If you divorce your sponsoring fiance(e) before filing the I-485, then you will likely lose residency.  You may not be able to file for a green card.  You and your K2 children may lose immigration rights and leave the US. If you overstay, you will be placed under “removal proceedings” and will have to answer to an immigration judge. There is a chance that you can plead your circumstances to an immigration judge and possibly get authorization to stay. You are highly advised to seek a professionals’ help for this matter.
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After filing the Adjustment of status (I-485)

If a divorce happens after you filed the Adjustment of Status, then the situation depends on when you are divorced.  If you successfully submitted the paperwork, had the interview, and are approved then you will have a valid conditional 2-year green card.  

But if you divorced before the interview, and you cannot attend it together, you will be denied permanent status.  However, people sometimes get away with this if they are not required to attend an interview. Situations are different for everyone, so if in doubt, consult an immigration professional.

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Divorce during the 2-year Conditional Permanent Resident status

(i.e. before the 10-year green card )

After you file the Adjustment of Status (I-485, AOS), you receive a conditional permanent residence status (if the marriage was less than 2 years old by the time you receive the green card).  This status is valid for up to 2 years and it’s done to make sure there’s no visa fraud (sham marriage) for immigration benefits.  

In order to “remove” or “lift” the “conditions” of a conditional permanent resident and get a full 10-year green card, you and your US spouse must file the I-751 jointly.  If you don’t file the I-751 at all, then you become “out of status”.  Being out-of-status means that you’re subject to deportation proceedings.

But what if there’s a divorce (or divorce proceeding) and the US spouse refuses to sign the petition together?

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Divorce doesn’t mean an automatic denial (or deportation)

While it may seem like a divorce will trigger an automatic “out-of-status” for you (or even deportation), it is not the case.  Most divorced conditional residents will be granted residence if submit their application with a waiver.

In other words, if you came to the US with a K-1 visa and had a divorce during the conditional resident period, it doesn’t mean an automatic deportation for you. In fact, there’s a decent chance you will be granted the Green Card if you apply for the waiver.

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Divorce waiver (not filing jointly)

If you can prove the marriage was bona-fide (or began in “good faith”) but terminated in divorce, you can apply for a waiver.

One or more of the following criteria needs to be met to be accepted by the US Citizenship and Immigration Services (USCIS):

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(1) Proof that the marriage was legitimate (“in good faith”), for example, photos, confirmation of shared property or leases, joint bills and other proof of a life together.
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(2) Proof that you will endure compelling hardship if sent back to your nation of birth (example: poverty, business loss, etc.).  Or, if there are children of the marriage.
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(3) Proof of having experienced abuse, torture, or mistreatment by the US citizen partner, with police reports or sworn affirmations from neighbors and relatives.
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This guideline also applies to children of a K-2 visa status.  You can check the full waiver criteria from the USCIS website.

You’ll have to submit Form I-751 with your divorce decree.  Review the Form I-751, and you’ll see options for requesting a waiver when divorced. The USCIS will need to confirm that they believe your marriage was in “good faith” but ended up in divorce.  Not only for immigration purposes.

As a general rule, when the conditional permanent resident can demonstrate that the marriage was bona-fide (in good faith), it is assumed that he/she was not at fault for failing to file a joint appeal.

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Divorce waiver (filing jointly)

You may be in speaking terms with your spouse.  He/she may be willing to file jointly even if divorced (or in divorce proceedings).  According to the USCIS, you will still need to file the I-751 with a waiver.  An RFE will still be issued asking you to submit all divorce paperwork (when finalized).

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Divorce still proceeding when Conditional Status expires

Some divorce cases may take long.  If your conditional status (2-year GC) is expiring while your divorce case is still pending in court, then you still need to file Form I-751.  You’ll have to inform the USCIS that your case is still in court.  Submit your court paperwork to show that the case is still active.

When the USCIS receives your petition I-751 and realizes that you’re getting a divorce, they will issue a “Request for Evidence” (RFE) asking you to submit your divorce decree once the divorce is finalized.  

Until then, your “conditional status” will still be active (you’ll get an extension).  Your status will be extended (normally up to one year) until the case is finalized or completed.  If the case takes longer, you must request an extension by writing to the USCIS.

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Case approved or denied

The USCIS might ask you to appear for an interview if there are issues with your case (such as a divorce).  You may be asked to present paperwork, have a question-and-answer session, or whatever they request.  

In a divorce situation, the USCIS may approve or deny your petition for permanent resident.  It’s up to you to make a compelling case and offer all evidence they require for a waiver.  If your case is denied, you’ll be automatically placed under “removal proceedings”.  You’ll get the chance to appeal with an immigration judge.
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Divorce with a Permanent Resident status

(i.e. after the 10-year green card )

You’ve gone through K-1 visa process, got the 2-year conditional status, successfully filed I-751, and received your 10-year green card (i.e. Permanent resident status).  What if there is divorce with during 10-year Permanent Resident status?

Well, then this divorce will be like any other.  You won’t risk having your permanent status rebuked or under deportation proceedings.

Under the 2-year conditional status, you already proved that your marriage was legitimate by filing Form I-751 jointly.  This time, a divorce will not affect your immigration status.

When your 10-year green card expires, you won’t have to seek out your ex-spouse’s help to sign the petition.  You won’t have to file any waivers either. You can keep filing renewals by yourself indefinitely.

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Divorce and Citizenship

If your marriage to a US citizen terminates within a three (3) year time limit, you may still need to accumulate five years of continual residence before having the ability to apply for citizenship.

Given that you’ve already a permanent resident, a divorce otherwise should not affect your eligibility to file for citizenship.

Keep these points in mind when going through a divorce in your k-1 visa process.  It’s often difficult but not impossible to prove a bona-fide marriage for a waiver.

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