At Long Last BIA Clarifies Law on Late Adjustment of Status Applications for K1 Visa Holders
The Board of Immigration Appeals recently issued a decision which resolves a long standing area of uncertainty in K1 visa law. In a recent case, Matter of Alfred Kebbie SESAY, the BIA considered the issue of whether a K1 visa holder who enter the U.S. and was married within the 90 day period can adjust status two years or more after the marriage.
To illustrate this issue by example, assume that a British national enters the U.S. on a K1 visa and marries the U.S. Citizen petitioner within 90 days. However, for some reason (perhaps lack of financial resources), the couple does not file the adjustment of status petition even though they remain happily married. Assume further that several years later the couple finally is able to file the adjustment of status petition put they have now been married for over two years. Under current law, a fiance visa holder was required to apply to adjust status to a conditional lawful permanent resident. Since conditional residency is for a two year period the USCIS and many immigration attorneys took the position that this also meant that an adjustment petition for a K1 visa holder must be adjudicated within two years. However, this position was not supported any specific statement of law but rather was a conclusion reached by some to fill in a significant gap in the law.
This left a lot of K1 visa holders who did not file adjustment petitions within two years of their entry to the U.S. in a tough position and one of uncertainty. Although this interpretation of the law never made much sense to me, it did make dealing with K1 cases like these risky to deal with.
With this BIA decision in hand, K1 applicants who entered the U.S. and were married within 90 days can apply to adjust status even if it is well beyond two years since they entered the country. To be sure, this new ruling does not change the requirement that he K1 applicant can only adjust status based on a marriage to the K1 visa petitioner.
If you entered the country on a K1 visa and have not applied for adjustment of status please contact us for assistance with your adjustment of status case.