We got separated / divorced a few weeks after marriage, can I still file for Adjustment of Status?

There are only two (2) scenarios here:

1. Yes, you can TRY to file for Adjustment of Status (AOS):

• AS LONG AS your husband/ex-husband has already signed the I-864 form and is WILLING to do so. Divorce doesn’t terminate the obligations of a sponsor.

If the alien and the original sponsor are divorced, the K-1 may adjust so long as the original sponsor already executed a Form I-864 or is willing to do so. Divorce on its own does not end the I-864 obligation. If the original sponsor never executed a Form I-864, and is not willing to do so, the K-1 will be inadmissible as a public charge.

Note that if the K-1’s marriage ends by death, it is likely that the K-1 would be able to adjust as the widow(er) of the citizen petition. In that situation, no I-864 is required.

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Question and Answers
USCIS Field Operations – American Immigration Lawyers Association (AILA) Meeting
March 21, 2012

• Do know that during the Adjustment of Status (AOS) process, there will be an interview involving both the Original U.S. Citizen Petitioner / Spouse and the Foreign Spouse. In this case Ex-Spouse. This is done in order for Immigration Officers to see for themselves and be able to properly adjudicate the case if it’s genuine or a fraud.

• Needless to say, being eligible to apply for AOS under these conditions is not an assurance that your AOS will be approved and that you’d be granted permanent residency. “Eligibility” does not mean “Approval”. They are very different terms, and should not be confused with one another.

• You cannot marry any other U.S. Citizen other than the petitioner. That’s what the K-1 Visa is for. You can only marry your ORIGINAL Petitioner, and be eligible to apply for AOS only under your marriage to your petitioner. If not;

2. No, you have to go back to your home country. If you don’t, you will be breaking immigration laws.

If You are Present in the United States as a K-1 Fiance(e)
You should apply for adjustment as soon as you marry your fiancé(e). By law and regulations, you are required to marry the U.S. citizen who petitioned for you within 90 days of your admission to the United States in K-1 status. If you fail to marry, you will become removable from the United States and cannot adjust through any other means.

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K Nonimmigrant
USCIS.gov – Green Card Through Special Categories of Family

• The K-1 Visa is only given to the original US Citizen Petitioner / Foreign Fiancé(e) Beneficiaries under the condition that both will marry within 90-days of the Foreign Fiancée’s arrival to the United States. The K-1 Visa holder can only adjust status if he/she marries the original USC Petitioner and no other. 

What happens if we do not marry within 90 days?

Fiancé(e) status automatically expires after 90 days. It cannot be extended. Your fiancé(e) should leave the United States at the end of the 90 days if you do not marry. If your fiancé(e) does not depart, he or she will be in violation of U.S. immigration law. This may result in removal (deportation) and/or could affect future eligibility for U.S. immigration benefits.

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USCIS.gov – Fiancé(e) Visas

• Also read: My fiancé(e) and I are having problems. My 90 days is almost up, and we’re still not married yet. What do I do?

Sources:

• USCIS.gov – Question and Answers: USCIS Field Operations – American Immigration Lawyers Association (AILA) Meeting March 21, 2012
• USCIS.gov – K Nonimmigrant: Green Card Through Special Categories of Family
• USCIS.gov – Fiancé(e) Visas