Adjustment of Status After K1 Untimely Marriage

 

Introduction

The K1 nonimmigrant visa allows U.S. citizens to petition for a fiancée to enter the United States in order to conclude a valid marriage. The petitioner and the K1 beneficiary are required to conclude a valid marriage within 90 days of the K1 beneficiary's admission, after which the K1 beneficiary and any K2 derivatives may have their status adjusted to that of an alien lawfully admitted for permanent residence with conditions. In this article, we will examine what options a U.S. citizen petitioner and his or her spouse have available in the event of an untimely marriage outside the 90-day timeframe allotted by statute.

Statutory and Regulatory Background

A U.S. citizen may petition for his or her alien fiancée to be admitted into the United States for purpose of concluding a valid marriage. INA 101(a)(15)(K)(i). The marriage between the petitioner and the K1 beneficiary must be concluded within 90 days. Id. K1 and K2 aliens are categorically ineligible for an extension of stay. 8 CFR 214.1(c)(3)(iv). After the marriage between the petitioner and the beneficiary is concluded, the beneficiary may acquire conditional permanent resident status. INA 101(a)(15)(K)(ii); 8 CFR 214.2(k)(5).

The K1 beneficiary may only adjust to lawful permanent resident status under section 245 on the basis of his or her marriage to the U.S. citizen petitioner. INA 245(d); 8 CFR 245(c)(6). The implementing regulations for the adjustment limitations go further than the statute to the extent that they make express reference to the 90-day limit to marryand provide specifically that a K1 nonimmigrant and any K2 derivatives may only adjust “based upon the marriage of the K-1 fiancée(e) which was contracted within 90 days of entry with the United States citizen who filed a petition on behalf of the K-1 fiancée…” (Emphasis added.)

The ability of K2 derivatives to adjust status depends on the ability of the K1 principal to adjust status.

The 90-Day Limit

Neither the K1 statutes nor their implementing regulations provide for any exception from the requirement that the U.S. citizen petitioner and the K1 beneficiary must lawfully conclude a valid marriage within 90 days of the beneficiary's admission to the United States. Thus, the K1 beneficiary's presence in the United States becomes unlawful if he or she has not married the petitioner within 90 days. The statute and regulations are clear that a K1 beneficiary cannot adjust status on any basis other than marriage to the petitioner. In the normal case, the K1 beneficiary would have to depart the United States before later applying for admission on a different basis.

The statutes and regulations leave open an interesting question: What happens if the K1 beneficiary remains in the US and then marries the petitioner more than 90 days after admission as a K1 fiancée(e)? Because the vast majority of K1 beneficiaries either marry the petitioner within 90 days and adjust status or depart after not concluding a marriage with the petitioner, this scenario is very uncommon. For that reason, the Department of Homeland Security (DHS) has not addressed the question decisively. Below, we will examine the limited guidance on options for K1 beneficiaries and petitioners who conclude a marriage more than 90 days after the admission of the K1.

Untimely Marriage Between K1 Petitioner and Beneficiary

The question of marriages between the K1 petitioner and beneficiary outside of 90 days has been addressed both by the United States Court of Appeals for the Fifth Circuit and by the former Immigration and Naturalization Service (INS). We will begin with the Fifth Circuit rule, established in 1981, and then examine INS guidance and rulemaking on the issue from 1991 and 1996. We will conclude by examining the differences between the Fifth Circuit rule and INS guidance, and where each adheres.

Fifth Circuit and Eleventh Circuit Rule

The United States Court of Appeals for the Fifth Circuit — which has jurisdiction over Texas, Louisiana, and Mississippi [see article] — confronted the question of what happens when a K1 petitioner and beneficiary conclude a marriage more than 90 days after the beneficiary's admission in a 1991 decision. Moss v. Immigration and Naturalization Service, 651 F.2d 1091 (5th Cir. 1981) [PDF version]. At the time Moss was published, the Fifth Circuit also had jurisdiction over the states now covered by the United States Court of Appeals for the Eleventh Circuit — Alabama, Florida, and Georgia. Accordingly, Moss is also precedential in those states. Bonner v. City of Prichard, Alabama, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) [PDF version].

In Moss, the petitioner and beneficiary (Moss) married 92 days after the beneficiary's entry into the United States. A child was born of the marriage. The beneficiary's husband left her two months after the marriage — but the government did not contest the bona fides of the marriage.

The INS initiated deportation proceedings against Moss, arguing that she was deportable for having failed to comply with the statutory requirement that she marry the petitioner within 90 days of admission. Moss argued that she had substantially complied with the requirement that she marry the petitioner within 90 days, and that the marriage had taken place two days beyond the limit was due to circumstances beyond her control. She argued that the pertinent issue was the intent of the statute, and thus that the statute should be read as providing for tolling the 90-day limit on account of circumstances beyond the alien's control. The Board of Immigration Appeals (BIA) had rejected this argument, taking the position that the relevant statutes made no provision for tolling the 90-day time period.

The Fifth Circuit would side with Moss. It cited to a decision of the United States Court of Appeals for the Ninth Circuit on a different issue involving K visas, wherein the Ninth Circuit held that because the purpose of the K visa provisions was to “facilitate formation of marital relationships,” “The relevant inquiry, enunciated in the statute, is whether the parties have a bona fide intent to marry after the alien enters.” Moss, 651 F.2d at 1093, quoting Menezes v. I.N.S., 601 F.2d 1028, 1034 (9th Cir. 1979) [PDF version].1 Reading the version of INA 214(d) in effect at the time, the Fifth Circuit concluded that the purpose of the 90 day timeframe “is to qualify the intention of the alien to soon marry upon entrance into the United States rather than to place an absolute and mandatory period of time within the marriage ceremony must occur.” Moss, 651 F.2d at 1093. Thus, the Fifth Circuit held that “Congress did not intend the ninety-day limit to be so rigidly applied that it could not be tolled when, due to circumstances beyond the alien's control, it becomes impossible to formalize the marriage within ninety days.” Id.

The Fifth Circuit noted the existence of its rule regarding tolling the 90-day timeframe for the K1 beneficiary marrying the petitioner in an unpublished 2011 decision. Shengli Jiang v. Holder, 425 Fed.Appx. 336, 338 (5th Cir. 2011) [PDF version].

INS/DHS Guidance

Then-INS General Counsel James A. Puelo addressed the following question in a legal opinion issued on July 24, 1991: “If the marriage between an alien fiancé or fiancée and a citizen petitioner does not occur until more than 90 days have elapsed since the alien's admission, is there any basis upon which the alien may obtain permanent resident status through adjustment of status?” You may read the General Counsel opinion here: [PDF version].

The General Counsel rejected the Fifth Circuit's position in Moss that the 90-day timeframe could be tolled, finding that the Fifth Circuit cited to “no authority” in support of its conclusion: “[W]e conclude that an alien fiancee may not adjust, based on his or her admission under sections 101(a)(15)(K) and 214(d), if the alien marries the citizen petitioner more than 90 days after the alien's admission.”

Despite rejecting the Fifth Circuit's position, the General Counsel concluded that marriage outside the 90-day timeframe “need not be an insurmountable bar to the alien's adjustment.” The General Counsel explained the one option available in such cases: “Section 245(d) of the Act … does not clearly preclude the citizen petitioner from filing a new visa petition on an alien's behalf after the untimely marriage. Approval of the citizen spouse's alien relative petition would qualify the alien spouse as an 'immediate relative.'” That is, although the beneficiary would be unable to pursue adjustment on the basis of his or her admission as a K1, he or she could pursue adjustment on the basis of a new immediate relative petition filed by the same petitioner who filed the K1 petition.

In so doing, the General Counsel recommended a narrow reading of the regulatory provision now codified at 8 CFR 245.1(c)(6). That provision, as we noted before, bars adjustment applications by aliens admitted in either K1 or K2 status based on the K1's marriage to the petitioner outside of 90-day timeframe. The General Counsel suggested that this should only apply to adjustment on the basis of the K1 admission, and not to adjustment on the basis of an approved Form I-130, Petition for Alien Relative, filed by the same U.S. citizen.

The General Counsel recommended that INS promulgate a new regulation expressly stating that a K1 beneficiary could adjust status on the basis of a new Form I-130 filed by the U.S. citizen petitioner — in the event that the marriage was concluded outside the 90-day timeframe. However, the General Counsel stated that such a new rule was not necessary since the existing regulations could be read as not foreclosing the possibility of adjustment on the basis of a new Form I-130 filed by the U.S. citizen petitioner. On August 20, 1996, INS proposed a rule that would expressly allowed for a K1 beneficiary to adjust on the basis of a new Form I-130 filed by the same U.S. petitioner [PDF version]. However, neither INS nor DHS has published a final rule based on the 1996 proposal.

What Is the Situation Today?

Outside the jurisdiction of the Fifth Circuit (Texas, Louisiana, and Mississippi), or the Eleventh Circuit (Alabama, Florida, and Georgia), there is no publicly binding policy on United States Citizenship and Immigration Services (USCIS) adjudicators regarding adjustment for K1 beneficiaries who marry their U.S. citizen petitioners outside of the statutory 90-day timeframe. As the General Counsel noted in 1991, and the INS proposed codifying in 1996, there appears to be no statutory provision prohibiting a K1 beneficiary from adjusting on the basis of a new Form I-130 filed by the same U.S. citizen petitioner after a marriage is concluded more than 90 days after the K1 beneficiary's admission.

Thus, in the case a K1 beneficiary marries the U.S. citizen petitioner outside the 90-day timeframe in any state other than Texas, Louisiana, or Mississippi, he or she may have two options available:

1. The U.S. citizen may file a new Form I-130 on behalf of his or her spouse while the spouse remains in the United States, and then the spouse may seek adjustment on the basis of the Form I-130; or
2. The spouse may depart the United States prior to the U.S. citizen filing a new Form I-130 on his or her behalf.

The first route carries with it certain risks. For example, a K1 beneficiary may accrue unlawful presence for having failed to marry within the 90-day timeframe and can be subject to removal from the United States. Because there is no publicly available binding policy on USCIS, it is also possible that the petition may run into difficulty in certain cases. Furthermore, a Form I-130 may always be denied on generally applicable grounds, for example if USICS has doubts about the legitimacy of the marriage.

Those in Texas, Louisiana, or Mississippi may argue, under Fifth Circuit precedent, that the 90-day timeframe should be tolled due to circumstances beyond the K1 beneficiary's control. Those under the jurisdiction of the Eleventh Circuit (Alabama, Florida, and Georgia) may argue that Moss is controlling in light of the Eleventh Circuit's adopting the case-law of the Fifth Circuit as precedent in its first published decision, three months after the Fifth had published Moss. In order to advance such an argument, the beneficiary would likely have to show not only that the marriage was concluded late due to circumstances beyond his or her control, but also that the marriage was concluded as soon as possible in light of those circumstances. However, it is unclear how amenable USCIS would be to these arguments even under the jurisdiction of the Fifth Circuit or the Eleventh Circuit, and the Fifth Circuit has not articulated a standard for applying Moss. The Eleventh Circuit appears to have never cited to Moss. Thus, petitioners in the Fifth Circuit may want to strongly consider filing a new Form I-130 in addition to making an argument under Moss.

It is important to reiterate that under no circumstance may an alien who was last admitted as a K1 adjust status on the basis of a marriage to someone other than the K1 petitioner, or on any basis under INA 245(a) other than marriage to the K1 petitioner.

Conclusion

In general, a K1 petitioner and beneficiary should always legally conclude their marriage within 90 days (unless they change their mind about marrying, in which case the K1 beneficiary should depart the United States within 90 days). In addition to being required under statute, concluding the marriage within 90 days avoids the myriad complications that may arise in the case of a late marriage. K1 petitioners and beneficiaries should remember that obtaining a marriage certificate is distinct from holding a marriage ceremony and associated celebrations.

We recognize, however, that there are cases in which the parties may not marry within 90 days due to unusual circumstances. For example, the General Counsel opinion noted one case where a marriage was delayed due to the death of a parent. The General Counsel also noted that there was a potential problem for alien fiancés and fiancées of members of the Armed Forces deployed abroad. In these cases, the petitioner and beneficiary should consult with an experienced immigration attorney as soon as possible for case-specific guidance on how to proceed in anticipation of an untimely marriage orafter an untimely marriage has occurred. The best course of action will always depend on the facts of a particular case.

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  1. Menzes concerned whether the Attorney General was bound to grant a K1 beneficiary's application for adjustment of status based on his or her having been granted a K1 visa and marrying the petitioner within 90 days. The Ninth Circuit concluded that the Attorney General was not bound to grant the adjustment application.