Under INA 101(a)(15)(K), the fiance of a US citizen may seek to enter the United States solely to conclude a valid marriage with the petitioner within 90 days of entry. The alien fiance enters the United States on a K-1 Fiance Visa. Under the regulations, the alien may not adjust status unless the marriage occurs within the first 90 days after admission. However, the 90 day rule does not appear in INA 245(d). Under INA 245(d), the alien fiance may not adjust status to conditional permanent resident unless the marriage is to the US citizen that filed the K-1 visa petition. The alien fiance becomes deportable if the marriage does not occur within the first 90 days. INA 214(d).
However, under some circumstances a couple might be unable to get married within the first 90 days. What if there is a death or illness in the family or the US citizen petitioner is deployed abroad as a member of the Armed Forces? If the alien and spouse get married outside the first 90 days, there is a loophole that can be used to obtain conditional permanent residence.
The spouse must file a new visa petition for the alien spouse, who is ineligible to adjust status as a K-1 nonimmigrant. The I-130 visa petition and the adjustment of status application (I-485) can be filed concurrently. Since the alien’s adjustment would still be based upon his or her marriage to the citizen petitioner, Section 245(d) would not clearly bar the alien’s adjustment.
The alien clearly may not seek adjustment under the preference system, nor on the basis of a marriage to a different citizen. However, INA 245(d) does not clearly preclude the citizen petitioner from filing a new visa petition on the alien’s behalf after the untimely marriage. Approval of the citizen spouse’s alien relative visa petition would qualify the alien spouse as an “immediate relative,” eligible for a marriage-based green card. The alien could then apply for adjustment, notwithstanding the fact that the failure to marry within the time allowed by Section 214(d) renders the alien’s status unlawful.
It is important to note that the alien and US citizen spouse must file the I-485 within the first two years of marriage, because, under INA 216, the alien spouse that enters as a K-1 fiance may only adjust status to conditional permanent resident.
The Nunez Firm handles countless marriage based immigration cases every year including fiance visas, consular processing, adjustment of status and removal of conditions on permanent residence. If you are currently in the process of any marriage based immigration case, contact us to schedule a consultation. Managing attorney Jay Nunez will personally meet with you to help you better understand the options and the pros and cons of each. Every case is different and the facts of each case will determine which approach is best.