Under the Immigration and Nationality Act (INA), a fiance visa holder has 90 days upon entry with a fiance visa to marry the US citizen petitioner before the visa expires. A K-1 entrant has 90 days after admission to marry the U.S. citizen petitioner. If the couple does not marry within that period, the immigration options become much more limited. Sometimes the relationship ends after the K-1 entrant arrives, or one or both parties decide not to marry. In that situation, the K-1 entrant generally cannot adjust status through a different spouse inside the United States.
I often hear from couples who have met and married but do not realize that the immigrant spouse entered on a fiance visa, while engaged to another person, before meeting their current spouse. If that situation occurs, the immigrant has to consular process, and is ineligible for adjustment of status (the green card application process in the U.S.). A K-1 entrant generally may adjust status in the United States only through the U.S. citizen who filed the original fiancé petition. If the K-1 entrant later marries someone else, adjustment through that new spouse is generally not available.
The problem that’s created by this situation is mainly how difficult it could be for the immigrant to be able to re-enter the U.S. legally with another visa even if s/he is now married to a U.S. citizen (not the fiance visa petitioner). Usually, immigrant spouses come to me after many months of unlawful presence, not knowing the consequences of staying in the U.S. beyond the 90 days granted on the fiance visa entry. If the K-1 entrant remains in the United States beyond the authorized period and later leaves for consular processing, the departure may trigger a three- or ten-year unlawful-presence bar, depending on the length of unlawful presence.. The immigrant will have to apply for a waiver of the bar but only by showing that their new US citizen spouse will suffer “extreme hardship” if the immigrant spouse is not allowed to re-enter the U.S. So, many times, it’s what we would call a “catch 22”. In many cases, the person may need to complete the immigrant visa process through a U.S. consulate abroad. That creates a difficult problem when departure itself may trigger an unlawful-presence bar.
It’s very important to document a case of extreme hardship if you can before the immigrant leaves the U.S., if a waiver is going to be attempted. Before leaving the United States, it is important to evaluate whether a waiver may be required, whether the person appears eligible for that waiver, and what risks consular processing may create. The timing and strategy should be based on the full immigration history and the facts of the individual case.
About Attorney Heather L. PooleHeather L. Poole represents clients in complex family-based immigration matters, including cases involving fiancé visa history, unlawful presence, adjustment problems, and waivers. She focuses on identifying the legal consequences of prior immigration decisions, evaluating the available paths forward, and developing a strategy tailored to the client’s full immigration history.
