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New Law Removes Fiancée Visa Entry Bar to Adjustment

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Finally, the Board of Immigration Appeals has come up with a solution for those who entered as K1 fiancées and then had their marriages break up.  I have had these situations myself where the spouse then was not eligible to adjust status based on a marriage to anyone else, even after having had a conditional permanent residency.  This law made no sense as it imposed a harsh reality of removal for those whose marriages didn’t last unless they could be eligible for Cancellation of Removal or Special Immigrant petition which often, more likely than not, the spouse was not qualified for.

Matter of Sesay, Int. Dec. 3707, 25 I&N Dec. 431 (BIA 2011) –

(1). Under section 245(d) of the Immigration and Nationality Act, 8 U.S.C. § 1255(d) (2006), a fiancé(e) visa holder can only adjust status based on the marriage to the fiancé(e) petitioner. Matter of Zampetis, 14 I&N Dec. 125 (Reg. Comm’r 1972), superseded.

(2) A fiancé(e) visa holder whose bona fide marriage to the fiancé(e) visa petitioner is more than 2 years old at the time the adjustment application is adjudicated is not subject to the provisions for conditional resident status under section 216 of the Act, 8 U.S.C. § 1186a (2006).

(3) A fiancé(e) visa holder satisfies the visa eligibility and visa availability requirements of section 245(a) of the Act on the date he or she is admitted to the United States as a K-1 nonimmigrant, provided that the fiancé(e) enters into a bona fide marriage with the fiancé(e) petitioner within 90 days.

(4) A fiancé(e) visa holder may be granted adjustment of status under sections 245(a) and (d) of the Act, even if the marriage to the fiancé(e) visa petitioner does not exist at the time that the adjustment application is adjudicated, if the applicant can demonstrate that he or she entered into bona fide a marriage within the 90-day period to the fiancé(e) visa petitioner.

You  certainly want to see an immigration attorney for help to ensure that you do this properly if you entered as a fiancée. Beach-Oswald immigration attorneys can help you navigate the process and file your papers correctly.

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