Immigration Law
Short Answer: Yes, in most cases. A K-1 fiancé(e) who married the U.S. citizen petitioner within 90 days of admission remains eligible to adjust status even after that marriage ends in divorce, as long as the marriage was bona fide when it was entered into. The former spouse's cooperation is not required, because the application rests on the already-approved Form I-129F. An approval in this situation generally produces a two-year conditional green card rather than a permanent one.
Most people in this situation are told their green card case is over. Usually, it is not.
The belief is understandable. The K-1 process is built around one relationship, and when that relationship ends it feels as though the legal foundation has gone with it.
But the Board of Immigration Appeals resolved this more than a decade ago, and USCIS has written the answer into its own Policy Manual.
A K-1 fiancé(e) who entered a valid, bona fide marriage with the petitioner inside the 90-day window may be granted adjustment of status even if that marriage no longer exists when the Form I-485 is adjudicated. The Board so held in Matter of Sesay, 25 I&N Dec. 431 (BIA 2011), and USCIS states the same position in its Policy Manual, adding that eligibility survives regardless of whether the person has since remarried.
INA § 245(d) does restrict K-1 adjustment severely — but it limits which relationship the adjustment may run through, not whether that relationship must survive to the day of decision. I've covered the scope of that bar in detail in a separate article on what INA § 245(d) actually prohibits.
Your former spouse's cooperation is not required. The adjustment rests on the Form I-129F, which USCIS approved before the fiancé(e) ever entered the country. No new petition is needed and no signature from the ex-spouse is needed. An ex-spouse who wants to derail the case cannot do so by refusing to participate.
Two facts decide the case, and neither is about the divorce.
The marriage happened within 90 days of admission. This is a condition of K-1 admission, not a flexible deadline. Do not assume a later wedding preserves eligibility — it does not, and no extension exists.
The marriage was bona fide when it was entered into. The relevant moment is the beginning of the marriage, not its end. USCIS cites Lutwak v. United States, 344 U.S. 604 (1953), for the principle that the marriage must have been genuine at inception even though it was later terminated.
A marriage that fell apart is not the same as a marriage that was never real, and immigration law recognizes the difference. That said, a short marriage that ended quickly invites scrutiny, and the burden sits with the applicant.
Proving a terminated marriage was genuine requires evidence from the period when the marriage existed — which is exactly the evidence that becomes hardest to obtain once a household has split.
USCIS weighs documentation reflecting a shared life rather than a shared ceremony: joint bank accounts with real transaction history, a lease or mortgage naming both spouses, jointly filed tax returns, insurance policies, and utility accounts at a shared address. Photographs and affidavits support that record but do not replace it. The underlying standard is the same one that applies to an intact marriage, described in more detail in my article on the K-1 visa to green card timeline.
The practical difficulty is access. Once a separation is underway, bank statements, lease copies, and tax records can become very hard to retrieve. Anyone who anticipates a divorce should assemble that record while it is still reachable — that single step does more for these cases than anything else.
An accusation from a former spouse is not the end of the analysis. If USCIS intends to deny adjustment based on derogatory evidence the applicant has not seen — including information supplied by an ex-spouse — the agency must generally follow the procedure at 8 CFR § 103.2(b)(16) and give the applicant an opportunity to respond.
Retaliatory claims of a sham marriage are a predictable feature of contested divorces. The regulation exists so that such claims are not acted on in the dark.
Adjustment approval in a divorce case generally results in conditional permanent residence rather than a ten-year green card. INA § 216 applies whenever the qualifying marriage is less than two years old when adjustment is granted — and a marriage that ended during the I-485 process is, almost by definition, a short one.
Conditional residence carries a second filing: Form I-751, Petition to Remove Conditions on Residence. Because the marriage has ended, that petition is filed alone, with a request to waive the joint filing requirement under INA § 216(c)(4), showing the marriage was entered into in good faith.
One point is worth knowing early. USCIS has confirmed that the "not at fault" element has not been read to require that the applicant be blameless for the divorce — it does not matter who initiated it (USCIS Policy Manual, Vol. 6, Part I, Ch. 5). For what that stage involves and how long it currently takes, see my article on I-751 processing time.
Notably, the applicant in Matter of Sesay was not subject to conditional residence at all, because his marriage was more than two years old by the time his case was adjudicated. Long processing times occasionally work in an applicant's favor.
Being statutorily eligible to adjust and being granted adjustment are two different things. Adjustment under INA § 245(a) is discretionary, and USCIS may weigh the full record, including factors unrelated to the marriage. I've written separately about how USCIS is approaching that discretion.
A case in this posture is winnable. It is not automatic, and it is not one to file casually.
If your marriage has ended or is ending while your I-485 is pending, the details matter more than they normally would — the timing of the wedding, the state of the documentary record, and how the filing is framed. Contact me at SG Legal Group if you'd like to talk through where your case actually stands. Consultations are available in English, Spanish, Russian, and Romanian.
Disclaimer: The information provided in this article is for general informational purposes only and does not constitute legal advice. Immigration laws and policies are subject to change, and individual circumstances vary. For advice specific to your situation, please consult with a qualified immigration attorney.
Oleg Gherasimov, Esq.
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