Can I Get U.S. Green Card Through Different Spouse Than My K-1 Fiancé Visa Sponsor?

After coming to the United States on a fiancé visa (K-1), some foreign nationals are sad to realize the relationship isn't going to work out. It's not unheard of for them to enter a new romance with a U.S. citizen, which quickly becomes serious. If things work out and they get engaged or married, can the foreign national get another K-1 visa or a U.S. green card?

In theory, the answer is yes. However, the would-be immigrant must plan ahead and be careful to do everything right procedurally, including:

• not staying so long in the United States as to become inadmissible and thus potentially unable to qualify to immigrate in the future, and
• leaving the United States in order apply for a K-1 visa or a marriage-based immigrant visa based on the new relationship from abroad.

We'll further discuss these two issues in this article.

Cautions About Overstaying a K-1 Visa

First off, do not overstay your 90-day K-1 visa thinking that a new engagement or marriage will take care of everything. Someone who enters the United States on a K-1 fiancé visa and then doesn't follow through with the wedding to the original petitioner faces possible deportation, plus other consequences.

One of these is consequences that, if you stay longer than the allotted 90 days, your immigration record will show "unlawful presence," which can lead to penalties, in the form of bars upon returning to the United States. As discussed next, you're going to need to leave the United States if you wish a marriage-based green card or another K-1 visa.

An overstay creates another problem, as well. It will make U.S. immigration officials less likely to trust you when trust is needed.

Why K-1 Visa Holders Must Leave the U.S. to Request a Green Card Based on Marriage to Someone New

A K-1 visa holder has no right to ask U.S. Citizenship and Immigration Services (USCIS) for a change to another visa status (not even a nonimmigrant visa, such as a B-2 visitor visa, nor an adjustment of status to U.S. residence, as in, a marriage-based green card.

What's more, a K-1 visa can never be applied for from within the United States. It is literally meant only for use as an entry visa.

That doesn't mean that those statuses are out of reach forever. It just means that the foreign national will have to leave the United States before asking for them, and then to complete the application process through a U.S. consulate in their home country. (See further explanation in Can You Renew or Extend Your K-1 Fiancé Visa Status?)

After leaving the United States, the foreign national can return either on another K-1 fiancé visa filed by the new romantic attachment, or a marriage-based immigrant visa if the two marry before the U.S. citizen files the visa petition on the foreign national's behalf.

For more information, see the articles in the Marriage-Based Visas and Green Cards section of Nolo's website.

Getting Legal Help

To find out more, talk to an experienced immigration attorney as soon as possible. The attorney can help you figure out the appropriate timing and other strategies to avoid suspicion and ultimately a denial of your request to immigrate to the United States.