On November 19, 2018, the Board of Immigration Appeals (BIA) released an opinion regarding affidavits of support where a K-1 fiancé gets divorced. When a K-1 fiancé gets married and applies for a green card, he or she must also submit an affidavit of support from his or her U.S. citizen spouse. The affidavit of support is a contract between the United States government and the U.S. citizen, where the U.S. citizen agrees to financially support his or her spouse until either citizenship, ten years of employment, or a permanent departure from the U.S.
In Matter of Song, the respondent did everything he was supposed to: properly obtain a K-1 visa, travel to the United States, marry within ninety (90) days of arrival and apply for a green card. Unfortunately, the marriage broke down before he could obtain a green card. As a result, the green card application was denied. He reapplied before an Immigration Judge. Because (it seems) the divorced U.S. spouse was not willing to submit another affidavit of support, the respondent instead submitted an affidavit of support from a family friend. The Judge denied the application, opining that the law required an affidavit of support from the U.S. spouse only.
The BIA agreed. The BIA strictly interpreted the Immigration and Nationality Act and Code of Federal Regulations, which state an affidavit of support must come from the U.S. citizen relative who petitioned for the foreigner. The BIA acknowledged only two exceptions: in the case of spousal death or abuse. Neither applied in this case, so the green card application remained denied and the foreign ex-spouse was inadmissible to adjust status.
So what does this mean? Frankly, a U.S. citizen spouse must submit an affidavit of support on form I-864 in order for a K-1 fiancé to get a green card. He or she may also withdraw the affidavit of support at any time after a green card is filed, which will result in a denial.
However, there is still hope. Leveraging an affidavit of support in certain circumstances may rise to the level of abusive conduct. This may allow a K-1 visa holder to self-petition and obtain a green card without an affidavit of support. It is extremely important to speak to an immigration attorney before going forward. Feel free to call us today at 484-430-4810 to discuss your situation further.
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