Adjustment of Status Based on Marriage After Separation from U.S. Citizen Spouse


Getting a green card based on marriage might still be possible even if the couple has separated or divorced. Our client entered the U.S. with a K-1 Fiancé(e) visa and timely married his U.S. citizen petitioner, but he separated from his wife before USCIS approved his application for adjustment of status. Nevertheless, he is still expected to receive his green card!

When a foreign national enters the United States on a K-1 Fiancé(e) visa, they are required to marry their U.S. citizen petitioner within 90 days of entry. They can thereafter file an application for adjustment of status to be granted permanent resident status in the U.S. (green card).

But what happens if the marriage does not go as planned? What happens if the couple separates or divorces while the application for a green card is pending, or before the application is even filed?

This exact thing happened to our client, who we will refer to as “Mike” to protect his privacy. Mike entered the U.S. on a K-1 Fiancé(e) visa. He married his U.S. citizen girlfriend right away, and they both had high hopes of being married forever. After all, they were childhood sweethearts. Mike filed his application for adjustment of status shortly after the marriage.

The couple had a perfect marriage . . . until Mike’s wife suddenly had a change of heart and decided she did not want to live with Mike any longer. Unfortunately for Mike, his wife refused to show up for his adjustment of status interview that had been scheduled by U.S. Citizenship and Immigration Services (USCIS). USCIS therefore denied Mike’s application.

Mike sought the assistance of Reeves Immigration Law Group (RILG). He consulted with Attorney Flomy Diza, a Senior Partner with the firm and the Supervising Attorney of RILG’s San Francisco office. Attorney Diza told Mike that he thought the USCIS’ denial was in error. Attorney Diza informed Mike that prior cases (Matter of Sesay and Matter of Choin) have established that a person in Mike’s situation may still be eligible for their green card if they can establish things such as the following:

  • The foreign national entered the U.S. with a validly issued K-1 visa;
  • The marriage to the U.S. citizen petitioner occurred within 90 days of entry; and
  • The qualifying marriage was bonafide.

Attorney Diza told Mike they would file a motion to reopen Mike’s adjustment of status application. In the motion, Attorney Diza provided both legal and factual reasons why Mike should be granted his green card. The motion also included proof that the marriage was not solely for a green card. This evidence included joint tax returns, bank statements, proof of joint health insurance, declarations from family and friends, and photos of Mike and his wife together.

RILG is now happy to say that Attorney Diza’s motion was successful and USCIS has recently reopened Mike’s application. This clears the way for Mike to be granted his green card, even though he is no longer married to and living with his U.S. citizen wife!


Los Angeles

(626) 795-6777

San Francisco

(415) 568-3777


(925) 310-5080


+011 (63) 917-622-2971


WeChat (微信) - yimin7788