Expired K-1 Alternative

[Jock-o 0]

Hello. My fiancee arrived to the US on a K-1 visa and we failed to get married within the 90 day period and she remained in the country. I have read that it is possible to get married and file a petition for foreign spouse (I-130) and she is able to stay while it is being processed. Is this true? Is there a possibility that it will not be approved and she will have to leave and face the 3 year bar (she's been here over 180 days).

[az110965 252]

Hello. My fiancee arrived to the US on a K-1 visa and we failed to get married within the 90 day period and she remained in the country. I have read that it is possible to get married and file a petition for foreign spouse (I-130) and she is able to stay while it is being processed. Is this true? Is there a possibility that it will not be approved and she will have to leave and face the 3 year bar (she's been here over 180 days).

Just out of courisity why did you not marry during the 90 days that the K-1 was valid for?

Now that the K-1 is expired AND she has an overstay I do not believe that you can marry and attempt to AOS at this point.

Exactly how long is the overstay? That will determine the ban...

Edited November 20, 2011 by az110965

[VanessaTony 3,567]

Yes you can marry now and file the I-130 together with the i-485. She would be adjusting just like any other person who arrived on a visitor visa or whatever. She will probably need another medical as well and you WILL have an interview.

As for if it's not approved... they might find it suspicious that you didn't marry in the 90 days and thus question you relationship. Yes if it's denied she will face a 3 year bar for overstay. The likelihood of denial depends on your relationship. The K1 is a lot easier to adjust from because you won't have much relationship evidence, but because you're filing the I-130 you need to show a lot of relationship evidence.

[az110965 252]

Yes you can marry now and file the I-130 together with the i-485. She would be adjusting just like any other person who arrived on a visitor visa or whatever. She will probably need another medical as well and you WILL have an interview.

As for if it's not approved... they might find it suspicious that you didn't marry in the 90 days and thus question you relationship. Yes if it's denied she will face a 3 year bar for overstay. The likelihood of denial depends on your relationship. The K1 is a lot easier to adjust from because you won't have much relationship evidence, but because you're filing the I-130 you need to show a lot of relationship evidence.

How can they legally marry if the K-1 provides for a marriage within 90 days of entry and she's been here for 200+ days?

Wouldn't she have been out of status on the 91st day? I understand USCIS forgives the out of status condition if a marriage has occurred and then AOS is filed for, but how on earth can they now marry and adjust?

Isn't she deportable under these conditions with a 3 year ban after an 180 day overstay?

[belinda63 3,022]

She would not be doing AOS based on the K-1, that is done and over. She would be adjusting status based on the concurrent filing of an I-130 and I-485 (after they marry). She is subject to a ban so AP would be useless and until the AOS is accepted she could be deported (but unlikely).

[VanessaTony 3,567]

How can they legally marry if the K-1 provides for a marriage within 90 days of entry and she's been here for 200+ days?

Wouldn't she have been out of status on the 91st day? I understand USCIS forgives the out of status condition if a marriage has occurred and then AOS is filed for, but how on earth can they now marry and adjust?

Isn't she deportable under these conditions with a 3 year ban after an 180 day overstay?

A lot of people misunderstand the K1. In order to adjust based on the K1 you need to marry in the 90 days. That's it. The only other restriction on the k1 is you MUST marry the K1 petitioner. Doesn't matter whether this is in the 90 days or later but if you don't marry the petitioner then you need to leave. Because she IS marrying the K1 petitioner there's no issue there. The only other issue is they didn't marry in the 90 days which means they can't AOS based on the K1.

As I said, they need only marry, file the I-130/I-485 combo and it will be adjudicated like an other person AOSing from a visitor visa or whatever.

Yes she was out of status on the 91st day. This doesn't prevent ANYONE from AOSing (including Just Bob who had 10+ years of overstay before he AOS'd). She's deportable thanks to the overstay but that's forgiven because she's married to a USC. If detained by ICE they would tell her to AOS immediately.

[az110965 252]

A lot of people misunderstand the K1. In order to adjust based on the K1 you need to marry in the 90 days. That's it. The only other restriction on the k1 is you MUST marry the K1 petitioner. Doesn't matter whether this is in the 90 days or later but if you don't marry the petitioner then you need to leave. Because she IS marrying the K1 petitioner there's no issue there. The only other issue is they didn't marry in the 90 days which means they can't AOS based on the K1.

As I said, they need only marry, file the I-130/I-485 combo and it will be adjudicated like an other person AOSing from a visitor visa or whatever.

Yes she was out of status on the 91st day. This doesn't prevent ANYONE from AOSing (including Just Bob who had 10+ years of overstay before he AOS'd). She's deportable thanks to the overstay but that's forgiven because she's married to a USC. If detained by ICE they would tell her to AOS immediately.

Thanks for the clarification.. I learn something new every day here on VJ...

So that being said - what is the purpose of the 90 day rule for marriage if it's not enforcable? In essence, someone could come on a K-1 and not marry for years, get caught - then marry and all is forgiven?

[VanessaTony 3,567]

Thanks for the clarification.. I learn something new every day here on VJ...

So that being said - what is the purpose of the 90 day rule for marriage if it's not enforcable? In essence, someone could come on a K-1 and not marry for years, get caught - then marry and all is forgiven?

The 90 day rule is so that they can AOS based on the K1 marrying AFTER the 90 days means filing an I-130. Filing the i-130 costs $420. She will also require a new medical while a K1 can use their K1 medical as long as it's less than a year ago.

If the k1 is caught while out of status and not married they WILL be deported. Just like anyone else out of status. If the K1 is married, just like anyone else, they are first given the chance to try and AOS. Bearing in mind they MUST be married to the K1 petitioner or they won't be able to adjust.

K1's can't get drivers licences, can't work, can't leave (well they can leave they'd just be unable to re-enter)... it's not a limbo status you'd want.

Edited November 20, 2011 by Vanessa&Tony