The bona fides of the fiancé/fiancée relationship are determined through both the I-129F petition and the K-1 visa interview processes. Even after USCIS approves the K-1 petition, most if not all fiancé cases go through a visa interview process, which involves an interview at the consular post in the country of origin to determine whether or not the K-1 visa, which is the fiancé visa, will be granted.
At some level, at least initially, the officer is testing the applicant to determine if he or she has a real relationship with the U.S. citizen petitioner that will lead to marriage. Then, after the fiancé/fiancée has arrived in the United States and the couple is married, they are required to apply for adjustment status, which is the process of converting the fiancé from the K-1 to a lawful conditional resident.
During the adjustment of status process, the couple are required to attend another interview together before an immigration officer. That examiner will ask them a series of questions to determine whether or not he or she feels they have a bona fide marriage. If they are able to pass that interview, the foreign national is granted a 2-year green card, which is “conditional residence” in the United States.
The whole purpose of the 2-year green card is to require the couple to come back to the USCIS and apply and prove again, after 2 years, that they still have a bona fide relationship. If they can show that the marriage is real, the conditions of the green card will be removed and the noncitizen can receive a permanent green card for up to 10 years.
What if they get divorced or separated before the 2 years is up?
There are waivers in the event that there is a separation or divorce so that the person can still try to remove the conditional basis of the green card. The most common waiver is where the foreign national, entered into the marriage in good faith but it was dissolved through no fault of the noncitizen. Fault for the failure of the marriage isn’t generally a factor. The noncitizen is required to prove he or she entered the marriage in good faith.
Other waivers include if the U.S. citizen spouse dies or subjected the noncitizen spouse to physical batter or extreme mental cruelty.
There are problems in timing sometimes. For example, if the couple have merely separated or filed for divorce but it is not yet final, the USCIS will give you 87 days to submit a final decree of the divorce. If 87 days is not enough time, USCIS will place the foreign national in front of the Immigration Judge.
What occurs in front of the judge?
The noncitizen has to show that the marriage is finally dissolved. Thus he or she must at some point file a new I-751 with a final decree of the divorce.
Will the ex-spouse be deported immediately if he or she gets divorced or separated?
Generally, no. An immigrant ex-spouse will not be deported until a judge orders he or her removed. This means that he or she must be placed in front of an Immigration Judge through a formal process that starts with the issuance of a Notice to Appear.
Otherwise, at the end of 2 years, if you have filed for divorce or have separated, but you don’t have a final decree of divorce, as mentioned, the USCIS gives you 87 days to procure a divorce decree.
If by that time you still haven’t obtained a divorce decree, USCIS will terminate your conditional residence and place you in immigration court. Once in front of the Immigration Judge, you have to file a new I-751 and procure the divorce decree. If you don’t do that or are unable to, the Judge has the ability to order you removed. Other grounds to waive the joint petition requirement include the death of the U.S. citizen spouse, having been battered or subject to extreme cruelty by the U.S. citizen spouse or that being removed will result in extreme hardship.
What if they cannot get divorced within the 87 days because the American citizen is holding up the divorce process?
Generally, you can eventually procure divorce from someone even if they are avoiding you, or trying to make it difficult for you. This issue will depend on if your application is before the USCIS or an Immigration Judge. However, the processing of an I-751 waiver petition can take many months. It is hoped that by the time the USCIS gets to issuing a Request for Evidence for the divorce decree that the divorce will be finalized. Otherwise, if you are before an Immigration Court, because adjudication of the I-751 by the Service Center can take so long and you can get continuances for good cause in front of the Judge, it is hoped that the Immigration Judge will be sensitive to the issue especially if you can demonstrate that the U.S. citizen spouse is frustrating the divorce process.