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When a marriage based adjustment of status application has been filed where a divorce occurs before its approval, a recent Court of Appeals decision in the 9th Circuit decided that the application would still be effective. This case involved a K-1 visa holder who had arrived in the U.S. with K-1 status as the fiancée of a U.S. citizen. After arriving and marrying, the K-1 holder filed for permanent residence. After waiting almost 2 years for a decision by the Immigration Service the K-1 applicant divorced. Both the Immigration Court and the Board of Immigration Appeals held the applicant ineligible because the divorce occurred before the applicant received permanent residence. The Court of Appeals reversed the Immigration Service and the Board of Immigration Appeals saying that the applicant cannot be foreclosed from adjusting status because the application had been initially valid, and should not automatically become invalid because the marriage ended, the law does not require the removal of an immigrant whose marriage ends in divorce while the application for adjustment of status languishes in the agency’s file cabinet.By extension a K-1 visa holder in a similar situation but for whom a petition had not been filed should be able to substitute a new American citizen as the petitioner in a case where the original American citizen spouse failed and/or refused to file an alien relative petition.If you need help or advise, call us at 212-944-9420.Our assistance is only a phone call, or e-mail communication away
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