Navigating the K-1 Visa: Understanding Marriage Within 90 Days and Its Implications
The 90-Day Marriage Requirement
The K-1 visa, commonly known as the fiancé(e) visa, allows a foreign national to enter the United States for the purpose of marrying their U.S. citizen petitioner. Upon arrival, the couple must marry within 90 days to comply with immigration regulations. This post delves into the nuances of this requirement, the consequences of non-compliance, and the legal pathways available if the marriage occurs outside the stipulated timeframe.
The 90-Day Marriage Requirement
Upon entry into the U.S. on a K-1 visa, the foreign national fiancé(e) must marry the U.S. citizen petitioner within 90 days. This condition is explicitly stated in the Immigration and Nationality Act (INA) and is enforced by U.S. Citizenship and Immigration Services (USCIS). Failure to marry within this period can lead to serious immigration consequences, including the accrual of unlawful presence and potential deportation .
Marrying After the 90-Day Period: Legal Considerations
If the couple marries after the 90-day window, the original K-1 petition becomes void. Under normal circumstances, the foreign national would need to depart the U.S. and apply for a new visa to re-enter legally. However, there are limited exceptions based on specific circuit court rulings.
Circuit Court Rulings and Exceptions
Fifth and Eleventh Circuits: In the case of Moss v. INS, the Fifth Circuit ruled that a K-1 visa holder who marries the petitioner even after the 90-day period may still adjust status if the marriage is bona fide. This decision has been influential in the Eleventh Circuit as well .
Ninth Circuit: The Ninth Circuit, in Choin v. Mukasey, held that a K-1 visa holder who married the petitioner within the 90-day period but divorced before the adjustment of status application was adjudicated could still adjust status, provided the initial marriage was genuine .
These rulings suggest that, under certain circumstances, a marriage occurring after the 90-day period may still allow for adjustment of status. However, such cases are exceptions and not the rule.
Remarrying a New Petitioner After the 90-Day Period
If the foreign national marries someone other than the original petitioner after the 90-day period, they cannot adjust status based on the original K-1 visa. Instead, the new spouse must file a Form I-130, Petition for Alien Relative, to initiate the green card process. The foreign national may need to leave the U.S. and apply for a new visa through consular processing .
Rights and Consequences of Non-Marriage Within 90 Days
Failing to marry within the 90-day period results in the foreign national being out of status, leading to:
Unlawful Presence: Accruing unlawful presence can trigger bars to re-entry into the U.S. For instance, overstaying by more than 180 days but less than a year can result in a three-year bar, while overstaying for a year or more can lead to a ten-year bar .
Deportation: The individual may be placed in removal proceedings and ordered to leave the U.S.
Ineligibility for Adjustment of Status: Without marrying the original petitioner within the 90-day period, the individual cannot adjust status based on that marriage.
Steps to Take If Marriage Occurs After 90 Days
If the couple marries after the 90-day period, they should:
Consult an Immigration Attorney: Given the complexity and potential legal ramifications, seeking professional legal advice is crucial.
Depart the U.S.: The foreign national may need to leave the U.S. and apply for a visa through consular processing.
File a New Petition: The new spouse must file a Form I-130 to initiate the green card process.
Prepare for Possible Waivers: In certain cases, waivers for unlawful presence may be available, but they require a compelling justification and are subject to approval.
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⚖️ Disclaimer
This blog post is for general informational purposes only and does not constitute legal advice. Reading this content does not create an attorney-client relationship between you and our firm. Every immigration case is different and should be evaluated by a qualified immigration attorney based on its own facts.
