Denied tourist to Student Visa conversion - AOS OK or not?

[motu 6]

My wife's friend from Colombia came here in May 08 on a tourist visa - her I-94 expired in Nov 08. But before its expiry she applied for a change to student visa (she studied English for 2 months at a school while on the Tourist visa). The conversion was denied as the USCIS says that the Tourist Visa was used for studies without prior approval. Apparently if she had applied for the change without joining the school (the school told her it was OK to join without the visa) it would have been OK.

Anyhow, she has been told that her status is now 'unlawful' and she has 30 days to leave USA (until March). In the meantime she has been living with her boyfriend who is now thinking of filing for AOS.

If they do get married - in the next 4 to 6 months and then file for AOS - will this unlawful status of 4 to 6 months be forgiven? Or is it still going to be a problem because of the denial of the previous change of visa? How long can they delay the marriage and AOS - a year? More? Less?

Another question is - What if she leaves in the next month or two (which will put her out of status for 6 or 8 weeks) - and then they file for K1 - will this cause any problems?

Which of the two is the safer bet and how much out of status time is generally forgiven for a K-1 or an AOS filer? Oh yes, she came here not knowing her boyfriend - she met him 3 or 4 moths after coming here and they are considering doing the K1 (so the intent to get married wasn't there).

Thanks:

Edited February 16, 2009 by motu

[YuAndDan 153]

This can cause problems, the AOS will be filed AFTER an order of removal has been issued, the interviewing officer may deny that marriage and AOS was used as an effort to avoid deportation.

If the file for a K-1 this will not be a problem, an overstay of 6 months or longer results in a bar, so the current overstay will not casue a problem as long as the visitor does not overstay 6 months and leave within the 30 days given by USCIS.

Can marry now and file for a spousal CR-1 visa, or file for a K-1 and marry later. The former (Marry now) will cost the least amount.

K-1:

I-129F: $455

Consulate: $131

AOS (I-485): $1010 (After marriage on K-1)

($1596)

CR-1

I-130: $355

NVC I-864: $70

NVC Visa fee: $400 ($355+$45)

($825)

[motu 6]

If they file for a K-1 this will not be a problem, an overstay of 6 months or longer results in a bar, so the current overstay will not cause a problem as long as the visitor does not overstay 6 months and leave within the 30 days given by USCIS.

Thanks YouAndDan.

She is in 'unlawful' status as of Feb - doesn't the overstay start counting from then? Also, are you saying that she should leave within the month given by USCIS to avoid a problem (in order to do K1 or CR1)? What if she stays a few weeks more - does that cause problems with K1?

And is AOS completely out of the question? in 6 months? Now?

Thanks for your answer, I will pass it on - every opinion helps and yes, her boy friend/fiancee is trying to contact a lawyer to get an initial appointment to get some answers (I hope he can file himself and save the money but I suggested to try and get some questions answered through a lawyer in an initial appointment which may be free or less than $100). Whether she should stay here beyond the 30 days - is one issue and whether she can be here for up to 6 months or so is another. They don't want to jump into a marriage right away but can if that is the only option.

Thanks

[motu 6]

The lawyer is advising them to marry and file for AOS - (They have been told to get married prior to the March deadline - given by USCIS in the denial letter). I wonder if it will be OK? (His fee would be $3,000 - initial consultation was $100.)

I am also wondering if they follow that - should he file for AOS on his own - I can definitely help him with my own paperwork and the examples here on VJ? Thanks

Edited February 17, 2009 by motu