A federal court supports a Board of Immigration Appeals ruling finding that a divorced woman is not able to remain in the U.S. on a K-1 marriage visa after the ex-husband withdrew his supporting affidavit. As such, the divorced woman is now removable. This is a unanimous decision by the Fourth Circuit court panel of three judges.

The divorced woman argued, on the basis of fairness, that the ex-husband should not have the sole power to limit her ability to remain in the U.S. However, the BIA found that the K-1 marriage visa relies on the U.S. citizen spouse to even consider the K-1 visa. As such, without the support of a U.S. citizen, the K-1 visa is no longer an option.

While married, the woman filed for conditional permanent resident status. When it became clear the marriage was not likely to last, a friend provided an affidavit of support, promising to provide financially for the woman. While the conditional permanent resident application was pending, the couple divorced. Although an affidavit of support was supplied, it was not from her husband, and as such, was denied.

The BIA found that there is no stated requirement that the affidavit of support is from the fiancé, however, they interpreted the intention of the law to mean the fiancé. On these grounds, the application was denied.

If you have questions about a marriage-based visa or any other immigration issue, contact us at ILBSG. We actively monitor court findings to ensure our clients get the right advice for their particular situations.

K-1 visa