Will my fiancee be able to stay in the US if we divorce? 12 Answers as of December 06, 2011

He may be able to stay if he can show that the marriage, at least at the time you got married, was real. People do fall out of love frequently BEFORE the immigrant spouse receives a green card (or changes status from provisional to permanent).

If you are not going to petition for him, he needs to leave the US because he will not be able to EVER change status or adjust status within the US if he entered on K-1 visa UNLESS he does so on the basis of your marriage. If you want to file for divorce, you need to find out what the requirements for that are in your state or consult with a family law attorney locally. You should advise your husband of his immigration status so that he does not jeopardize his future ability to come to the US.

The first step would be filing an action for divorce in a court of competent jurisdiction. In New York, you would file a divorce action in the Supreme Court, but each state is different. If you do not wish to petition for your husband, then you do not have to do so. There is no requirement. Your husband would not be able to change his status to another non-immigrant or immigrant visas he entered with a K-1 visa. A person cannot adjust their status or otherwise change their status if they entered with a K-1 accepted through a green card application based upon the marriage. As for the question about staying do to changing his religion, if he is planning to change his religion solely so he can file for asylum that would be fraud. Filing a frivolous asylum application will result in removal from the United States and a bar to any future immigration benefits.

You can certainly divorce at any time. As he entered on a K-1 visa as your fianc, he cannot get permanent residence any way other than through your petition.

Under recent BIA case law, Matter of Sesay, a K-1 entrant can still adjust status even if the applicant divorces prior to the time the permanent residence application is adjudicated. However, USCIS is currently taking the position that the U.S. citizen petitioner must still be willing to complete the affidavit of support on behalf of the person seeking permanent residence. It is unclear, at this point, what USCIS will do with applicants who seek permanent residence but for whom the U.S. citizen petitioner is unwilling to continue with the affidavit of support.

For divorce you can consult a family law attorney. In terms of your husband staying here, if you do not want to change his status, then you have 2 years to think about it. I am assuming that you already filed for his LPR. If you haven't then he will have to file it himself before the divorce comes through. If he finds someone else, then he will be able to stay passed the 2 years CLPR. Good luck!

There are two aspects to your question. The procedures for Divorce and your husband's immigration status. As an immigration attorney, I can advise you on the second question. We would also want to know where your fiance lives. The United States Citizenship and Immigration Services (USCIS) generally holds that those who enter the United States on a K-1 (fianc) visa can only adjust their status to that of permanent resident if their marriage is still valid at the time of the adjustment. However, the Ninth Circuit Court of Appeals holds that a fiancee can adjust their status based on their marriage, even if the marriage ends in divorce before filing the adjustment application. In Strokous v. Mukasey, Natalyia Stokous came to the U.S. on a K-1 visa and married her petitioner Borus Bengel. They were divorced before she filed her application for permanent residence. USCIS denied her application for adjustment and the immigration judge found her to be removable. In relying upon the rationale in Choin v. Mukasey, the Strokous court said that the fact that Strokous had divorced her husband prior to filing for adjustment was not a valid reason to deny her application for adjustment. They held that, because she had married her K-1 petitioner, she was eligible to adjust her status on the basis of that marriage even though she was divorced at the time she filed her adjustment application. It is important to discuss all the facts of your case with an experienced immigration attorney before proceeding.

Not so much. Except in extreme situations, someone who comes in on the K-1 can ONLY adjust (get his permanent residence or greencard) based on the petitioner who filed the K-1 visa.

Your fiance will not be able to remain legally in the United States past the expiration of the 90 days if he does not adjust his status through a marriage to you. Entry in K-1 status does not allow for a change of status to another nonimmigrant visa or adjustment of status through other than marriage to the U.S. citizen who filed the fianc visa petition. You need to consult with a family attorney or contact your local court for instructions on requirements for a divorce.

A person who enters the US on a fiancee visa is only able to obtain a green card via that spouse. If a crime victim or if there is an asylum case, there may be an exception for that but I am not certain. You would want to have a full consult with a competent immigration attorney to determine avenues. I will warn you that when you say things like, "Change religion", that sounds like you are fishing. I strongly caution him not to file a fake asylum claim or any other as this can get him into a lot of trouble!