K-1 Adjustment of Status Restriction Under INA §245(d)

INA §245(d) creates a special K nonimmigrant adjustment restriction

INA §245(d) states that a person admitted as a K nonimmigrant may not adjust under §245(a) except as a result of the marriage of:

• The K nonimmigrant; or
• In the case of a qualifying child, the K nonimmigrant parent

to the U.S. citizen who filed the petition that produced the K classification.

8 C.F.R. §245.1(c)(6) implements the restriction

The current adjustment regulation makes a K nonimmigrant ineligible to adjust unless the specified K exception applies.

For a K-1 or K-2 case, the regulation requires adjustment based upon:

• The marriage of the K-1 fiancé(e);
• Contracted within 90 days of the K-1 entry;
• To the U.S. citizen who filed the K petition.

The marriage should occur within 90 days of K-1 entry

INA §214(d) requires the K-1 process to be based on the parties' intention and legal ability to conclude a valid marriage within 90 days after the fiancé(e)'s arrival.

Current USCIS Form I-485 instructions state that a K-1 beneficiary may file the K-based adjustment application after marrying the Form I-129F petitioner within that required 90-day period.

A marriage occurring after 90 days requires separate analysis. USCIS materials recognize that the U.S. citizen spouse may be able to file Form I-130 after a late marriage, but the K entrant remains subject to the statutory and regulatory restrictions governing adjustment after K admission.

The marriage must be to the original Form I-129F petitioner

This is the central rule of INA §245(d).

A K-1 entrant cannot ordinarily satisfy §245(d) by marrying:

• A different U.S. citizen;
• A lawful permanent resident;
• A different person who later becomes a U.S. citizen; or
• Another petitioner after the original fiancé relationship ends.

A second U.S. citizen spouse ordinarily cannot provide a new adjustment basis

Suppose a K-1 entrant:

1. Enters using the original fiancé visa;
2. Does not complete a qualifying adjustment through the I-129F petitioner;
3. Later divorces or ends the relationship; and
4. Marries another U.S. citizen.

An I-130 from the second spouse does not ordinarily erase the §245(d) restriction.

Both the Fourth Circuit in Markovski v. Gonzales and the BIA in Matter of Sesay recognize the same-petitioner restriction.

An employment petition ordinarily cannot replace the K-1 basis

A K-1 entrant may later become the beneficiary of:

• An EB-1 petition;
• An EB-2 NIW;
• An EB-2 PERM petition;
• An EB-3 petition;
• An EB-5 petition; or
• Another employment-based immigrant classification.

That petition does not ordinarily eliminate §245(d).

INA §245(i) ordinarily does not override INA §245(d)

Section 245(i) allows qualifying grandfathered applicants to adjust notwithstanding subsections (a) and (c).

It does not say “notwithstanding subsection (d).”

The Fourth Circuit in Markovski v. Gonzales specifically rejected an argument that §245(i) allowed a K-1 entrant to avoid §245(d), noting that §245(i) overrides subsections (a) and (c), but not subsection (d).

Divorce After a Timely Marriage Is Different From Changing Adjustment Basis

Matter of Sesay distinguishes a K-1 who never completed the qualifying marriage from a K-1 who married the original petitioner within 90 days in a bona fide marriage and later divorced.

A later divorce does not automatically erase the qualifying K-1 adjustment basis. The applicant may remain eligible through the original marriage even though that marriage no longer exists when Form I-485 is adjudicated.

That rule does not permit the applicant to switch to a second spouse or unrelated immigrant petition. The surviving adjustment basis still arises from the original K-1 petitioner and timely qualifying marriage.

For the practical consequences of divorce, Form I-864, conditional residence and evidence of the qualifying marriage, see K-1 Fiancé(e) Adjustment of Status.

Practical K-1 Filing Issues Are Addressed Separately

Once the applicant has established the correct K-1 adjustment basis, separate issues can include delayed Form I-485 filing, expiration of K-1 status, unauthorized employment, admissibility, medical evidence, Form I-864, K-2 children, conditional residence and removal proceedings.

Those issues do not change the threshold §245(d) question addressed on this page: whether the applicant is attempting to adjust as a result of the qualifying marriage to the original K petitioner.

See K-1 Fiancé(e) Adjustment of Status for the complete practical adjustment analysis.

Travel, parole, and later reentry do not necessarily erase §245(d)

A person once admitted as a K-1 should not assume that later departure and return on another document automatically eliminate the K adjustment restriction.

USCIS has applied §245(d) to cases involving a prior K admission even where later immigration events occurred.

Evidence Needed to Analyze an INA §245(d) Restriction

The most important records for determining whether INA §245(d) permits the proposed adjustment basis are usually:

• Form I-129F approval information;
• K-1 visa and Form I-94;
• Identity of the original U.S. citizen petitioner;
• Date of K-1 admission;
• Marriage certificate and exact marriage date;
• Evidence identifying whether the marriage was to the original petitioner;
• Divorce records where the qualifying marriage later ended;
• Any later Form I-130 or employment petition being proposed as a new adjustment basis;
• Prior Form I-485 filings and decisions; and
• Departure and reentry records where later travel is claimed to affect the restriction.

For the full K-1 Form I-485 evidence checklist, see K-1 Fiancé(e) Adjustment of Status.

Frequently Asked Questions About the K-1 Restriction

Can a K-1 adjust through a different U.S. citizen spouse?

Ordinarily no. INA §245(d) ties adjustment after K-1 admission to the qualifying marriage involving the U.S. citizen who filed the fiancé(e) petition.

Can a K-1 adjust through an employment petition?

An approved employment immigrant petition does not ordinarily eliminate the separate restriction created by INA §245(d).

Does INA §245(i) overcome the K-1 restriction?

Section 245(i) expressly addresses specified problems under subsections (a) and (c). It does not state that it overrides the separate K restriction in subsection (d).

What if the applicant timely married the K-1 petitioner and later divorced?

That is a different issue. Matter of Sesay recognizes that a timely bona fide marriage to the original petitioner may continue supporting adjustment even after the marriage ends. See K-1 Fiancé(e) Adjustment of Status for the full post-divorce adjustment analysis.

Continue the K adjustment analysis