Published: March 19, 2011

In general, the K-1 visa is available to foreign nationals seeking to enter the U.S. to marry their U.S. citizen fiancé, as long as, among other requirements, they intend on marrying within 90 days of entry, and the couple has met in person at some point in the 2 year period leading up to the filing of the visa petition. After entering on a K-1 visa and marrying their U.S. citizen petitioner within 90 days, the foreign national is to then apply for “adjustment of status” and if all goes well at the interview at the local CIS office, the foreign national will be issued a 2 year conditional green card. These days the process can be a quick one, with all steps completed in as little as 8-10 months – start to finish.

But what happens when the couple divorces by the time of the adjustment of status interview and/or prior to green card issuance? According to a hugely significant Board of Immigration Appeals’ (BIA) decision from last week (Matter of SESAY), the foreign national is still eligible for permanent residence. In SESAY, Mr. Sesay, a native and citizen of Sierra Leone, met his future U.S. citizen wife while both were studying in Addis Ababa, Ethiopia. Eventually his U.S. citizen fiancé petitioned him to enter the U.S. on a K-1 visa. After entering on the K-1 and marrying his petitioner within 90 days, Mr. Sesay applied for adjustment of status. By the time a decision was rendered on the application, however, the couple had divorced – although a child was born to the marriage. Because the marriage was no longer intact, the immigration officer denied the application and that decision was eventually upheld by an Immigration Judge in removal proceedings. While fighting his case in the U.S., Mr. Sesay eventually met the woman who would become his second wife, married her and filed for permanent residence based on this marriage. That application was also denied, because of the rule that forbids K-1 visa entrants from obtaining U.S. residence based on a marriage to someone other than their U.S. citizen K-1 petitioner.

The BIA agreed that Mr. Sesay could not be issued a green card based on his second marriage, but also concluded that nothing in the law prevents Mr. Sesay from being eligible for resident status based on his first marriage – since the marriage was indeed based on a bona fide, genuine relationship, and was entered into in the requisite 90 day period following entry on his K-1 visa. According to the BIA, the fact that Mr. Sesay, prior to green card issuance, divorced his petitioning spouse and later remarried does not dictate the denial of his application for residence.

Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois