A very common issue with K-1 visa holders, is whether they need an affidavit of support when they apply for adjustment of status in the USA. After-all, they would have provided an affidavit of support to the USA Consulate at the time that they were applying for the K-1 visa.
K-1 visa holders must marry their fiance within 90 days of entering the USA. Thereafter, they can file for adjustment of status from the K-1 visa to a green card. The immigration service in the USA will require another affidavit of support with the I-485 form. The question is what to do if the parties are separated or divorced, and the immigrant cannot get another affidavit of support.
Recently, in the case of Matter of Sesay, the Board of Immigration Appeals (BIA) confirmed that an immigrant can still get a green card even if they are no longer married to the USA citizen sponsor.. What the BIA did not discuss, is what happens to the requirement of the affidavit of support.
I have had several clients come to my office after entering on a K-1, getting married and divorced, and having their adjustment denied because they had no new affidavit of support. In one case, this month, the immigration service actually approved my client’s green card, even with no new affidavit of support. Fortunately she had a copy of the affidavit of support that was presented at the USA consulate when she got the K-1 visa. That was not enough initially , however, as the immigration service previously denied her adjustment case when she could not provide a NEW affidavit of support. I convinced them to reopen that case, and they approved it.
I have another K-1 adjustment case in Immigration Court with the same exact issue. Hopefully the immigration judge will agree with me, or the government lawyer will withdraw their demand for a new affidavit of support. In the end, however, the purpose of the affidavit of support is to prove that the immigrant will not become a public charge. You would think that the original affidavit would be enough, or that other evidence would be sufficient to allow fiances to get the green card to which they are entitled under the law.
About the author: Bruce Coane is an attorney who specializes in labor and employment law and immigration law, with offices in Florida and Texas. He may be reached at firstname.lastname@example.org, 713-850-0066 or 305-538-6800.