Can One Adjust His or Her K Visa Status if the Marriage Ends in Divorce?

Under US immigration law when a foreign national enters the US on a K-1 fiancé(e) visa, he or she must marry the US citizen fiancé(e) (the petitioner) within 90 days of their arrival in the United States. After marriage they have to file for Adjustment of Status. Similarly if a foreign national enters the US on a K-3 visa (based on marriage to US Citizen outside the US), then he or she too has to file for the Adjustment of Status to Permanent Residence after coming to US. If the marriage is less than 2 years old at the time the adjustment is granted the foreign national will be given conditional Residency’s valid for two years. At the end of the two years, the couple must file a joint petition to remove the conditions on the green card.

But what happens if everything doesn’t go as planned and the couple gets divorced while their adjustment application is pending; before the green card is granted? (i.e. the foreign national enters on a K visa, files for adjustment of status, but before the initial adjustment interview, the couple gets divorced).

This issue recently came before the Ninth Circuit Court of Appeals. In the case before the 9th Circuit a foreign national entered the U.S. on a K-1 visa, got married to the US citizen who filed the K-1 petition, filed an application to adjust status, but after more than 2 years from the date she filed her application for adjustment of status, (and while she was still waiting to have an interview with USCIS), the marriage ended in divorce. The USCIS denied her adjustment of status because of the divorce, and she was put in removal proceedings.

The USCIS based their decision on the fact that the marriage was no longer viable. It was argued by the USCIS that a K visa holder is ineligible to adjust status to lawful permanent residence if the marriage ends before the USCIS adjudicates the application for his or her adjustment of status. However, on August 12, 2008, in an important immigration decision issued by the Ninth Circuit Court of Appeals, the court held that foreign nationals who marry their fiancé(e) after entering the United States on a K-1 fiancé(e) visa, and who subsequently obtain a divorce prior to obtaining perm