MUST READ!!!! Married outside 90 days

[klicristina 0]

Hi everyone. The K-1 visa is just a very ridiculous visa because it gives you no option to adjust outside the 90 days. It doesn't matter if you are married with the USC. Unless you have a really strong excuse such as a medical reason to not make it to your wedding, you may be able to get a waiver. Outside of that, you are SOL!

[Kathryn41 3,205]

Actually, the K-1 visa is very good for what it is designed to do - allow entry for the beneficiary in order to get married to the US citizen and apply to adjust status as long as the conditions of the K-1 visa have been met. That condition is to get married within 90 days. If you do not get married within the 90 days, then you have violated the terms of the visa and are no longer able to get the benefit conferred by that visa. If that happens, however, the beneficiary's status can be adjusted from 'out of status' as the spouse of a US citizen by filing an I-130 petition at the same time as the I-485. Basically, the I-130 is 'approved' first - giving a basis upon which the AOS can be approved - an approved petition for the spouse/family member of a US citizen. The I-130 has to be submitted with the AOS as they are linked, but it needs to be approved first before the I-485 otherwise there is no valid 'status' for the beneficiary.

It is always best to think of the K-1 as part one of a two step process and part two - the AOS -is dependent upon fully satisfying the conditions of part one - the K-1 visa. If you don't fulfill the condition of the visa, you don't get the immigration benefit tied to it. It is not a ridiculous visa - it is very clear on what is required and you have only yourself to blame if you did not satisfy the terms of the visa. The really unfortunate part is that while you were no longer eligible to adjust status based on the K-1, you could have adjusted status based upon an approved petition as an immediate family member of a US citizen - if you had filed the petition requesting this. You didn't, thus there was no other option but for USCIS to deny the AOS.

[payxibka 10,045]

Hi everyone. The K-1 visa is just a very ridiculous visa because it gives you no option to adjust outside the 90 days. It doesn't matter if you are married with the USC. Unless you have a really strong excuse such as a medical reason to not make it to your wedding, you may be able to get a waiver. Outside of that, you are SOL!

You are mistaken... there is a path to legal status for a K-1 if you marry outside the 90 days.... it requires both the I-130 and the I-485... unfortunately in your situation you missed the I-130, had you done this you would not be in your current situation... it was an unfortunate misstep ...

[klicristina 0]

Hi everyone. The K-1 visa is just a very ridiculous visa because it gives you no option to adjust outside the 90 days. It doesn't matter if you are married with the USC. Unless you have a really strong excuse such as a medical reason to not make it to your wedding, you may be able to get a waiver. Outside of that, you are SOL!

You are mistaken... there is a path to legal status for a K-1 if you marry outside the 90 days.... it requires both the I-130 and the I-485... unfortunately in your situation you missed the I-130, had you done this you would not be in your current situation... it was an unfortunate misstep ...

Could you please direct us to a website where this immigration law specifically states that a K-1 entry the got married after the 90 days to USC and is allowed to adjust status by filing an I-485 and I-130 together?

If that is the case, then why the judge didnt allow me to do that? We consulted with 6 immigrantion lawyers and the D.C. area and non of them told us about this option. Our lawyer is one of the top immigration law firm in the area and she is the partner of the firm with 30 years experience.

[payxibka 10,045]

Hi everyone. The K-1 visa is just a very ridiculous visa because it gives you no option to adjust outside the 90 days. It doesn't matter if you are married with the USC. Unless you have a really strong excuse such as a medical reason to not make it to your wedding, you may be able to get a waiver. Outside of that, you are SOL!

You are mistaken... there is a path to legal status for a K-1 if you marry outside the 90 days.... it requires both the I-130 and the I-485... unfortunately in your situation you missed the I-130, had you done this you would not be in your current situation... it was an unfortunate misstep ...

Could you please direct us to a website where this immigration law specifically states that a K-1 entry the got married after the 90 days to USC and is allowed to adjust status by filing an I-485 and I-130 together?

If that is the case, then why the judge didnt allow me to do that? We consulted with 6 immigrantion lawyers and the D.C. area and non of them told us about this option. Our lawyer is one of the top immigration law firm in the area and she is the partner of the firm with 30 years experience.

I will look for the reference...

FWIW, the judge could not allow you to re-file because once you filed the I-485 (without the benefit of the I-130) you placed yourself in a path that was unrecoverable, because in order to recover, a decision was needed on the original I-485. The only decision available was a denial, and once a denial decision is rendered on an I-485, the law requires the alien to immediately be put in removal proceedings. Once you are in removal proceedings you are barred from re-filing.

ETA:

While not an official INA reference... look at the bottom of the page. I know similar language exists (or has existed) on the USCIS website.

Important: If you married the U.S. citizen but not within the 90-day time limit, your spouse must now file USCIS Form I-130, Petition for Alien Relative.

http://usimmigration.visapro.com/Adjustment-of-Status.asp

Edited October 29, 2009 by payxibka

[klicristina 0]

Hi everyone. The K-1 visa is just a very ridiculous visa because it gives you no option to adjust outside the 90 days. It doesn't matter if you are married with the USC. Unless you have a really strong excuse such as a medical reason to not make it to your wedding, you may be able to get a waiver. Outside of that, you are SOL!

You are mistaken... there is a path to legal status for a K-1 if you marry outside the 90 days.... it requires both the I-130 and the I-485... unfortunately in your situation you missed the I-130, had you done this you would not be in your current situation... it was an unfortunate misstep ...

Could you please direct us to a website where this immigration law specifically states that a K-1 entry the got married after the 90 days to USC and is allowed to adjust status by filing an I-485 and I-130 together?

If that is the case, then why the judge didnt allow me to do that? We consulted with 6 immigrantion lawyers and the D.C. area and non of them told us about this option. Our lawyer is one of the top immigration law firm in the area and she is the partner of the firm with 30 years experience.

I will look for the reference...

FWIW, the judge could not allow you to re-file because once you filed the I-485 (without the benefit of the I-130) you placed yourself in a path that was unrecoverable, because in order to recover, a decision was needed on the original I-485. The only decision available was a denial, and once a denial decision is rendered on an I-485, the law requires the alien to immediately be put in removal proceedings. Once you are in removal proceedings you are barred from re-filing.

ETA:

While not an official INA reference... look at the bottom of the page. I know similar language exists (or has existed) on the USCIS website.

Important: If you married the U.S. citizen but not within the 90-day time limit, your spouse must now file USCIS Form I-130, Petition for Alien Relative.

http://usimmigration.visapro.com/Adjustment-of-Status.asp

Thank-you very much... The website is very good and clear!

[lucyrich 20]

I will look for the reference...

FWIW, the judge could not allow you to re-file because once you filed the I-485 (without the benefit of the I-130) you placed yourself in a path that was unrecoverable, because in order to recover, a decision was needed on the original I-485. The only decision available was a denial, and once a denial decision is rendered on an I-485, the law requires the alien to immediately be put in removal proceedings. Once you are in removal proceedings you are barred from re-filing.

ETA:

While not an official INA reference... look at the bottom of the page. I know similar language exists (or has existed) on the USCIS website.

Important: If you married the U.S. citizen but not within the 90-day time limit, your spouse must now file USCIS Form I-130, Petition for Alien Relative.

http://usimmigration.visapro.com/Adjustment-of-Status.asp

I'm slightly stumped here. I am very confident that adjustment is possible even if the marriage happened after 90 days, but such adjustment requires an I-130 in addition to the I-485. I've seen that on many attorneys' sites, and I've heard many reports of it being done.

But I can't find an official USCIS document that says it is doable, nor do I find an official law or regulation that explicitly allows it. In fact, it looks to me like it's disallowed by 8 CFR, but I don't trust my reading as much as I trust the numerous reports I've heard of it happening.

INA 245(d) says: The Attorney General may not adjust, under subsection (a), the status of a nonimmigrant alien described in section 101(a)(15)(K) 2aa/ except to that of an alien lawfully admitted to the United States on a conditional basis under section 216 as a result of the marriage of the nonimmigrant (or, in the case of a minor child, the parent) to the citizen who filed the petition to accord that alien's nonimmigrant status under section 101(a)(15)(K) . . That says that a K-1 can't adjust except on the basis of marriage to the original petitioner, but it doesn't place a 90 day time limit on when the marriage has to happen.

8 CFR 245.1©(6) says: The following categories of aliens are ineligible to apply for adjustment of status to that of a lawful permanent resident alien under section 245 of the Act: ... Any alien admitted to the United States as a nonimmigrant defined in section 101(a)(15)(K) of the Act, unless: (i) In the case of a K-1 fiance(e) under section 101(a)(15)(K)(i) of the Act or the K-2 child of a fiance(e) under section 101(a)(15)(K)(iii) of the Act, the alien is applying for adjustment of status based upon the marriage of the K-1 fiance(e) which was contracted within 90 days of entry with the United States citizen who filed a petition on behalf of the K-1 fiance(e) pursuant to § 214.2(k) of this chapter;

That says that a K-1 visa holder is ineligible to adjust status unless it's via a marriage to the original petitioner that happened within 90 days of entry. But that's not statute, it's regulation.

I'm reminded of the quote "The law doesn't say what it says, it says what the courts say it says". There's probably some case law, or some conflicting statute or regulation, or other practice that overrides the text I found in 8 CFR. It's dangerous to be too literal in reading one part of the regulations in isolation.

[emt103c 10]

Wow. 8 pages of argument.

Please note that visapro DID NOT SAY that you were eligible to file the I-130 AND adjust status from within the United States. It said

Important: If you married the U.S. citizen but not within the 90-day time limit, your spouse must now file USCIS Form I-130, Petition for Alien Relative.

meaning consular processing. . .

That point is moot though. Now, the OP has to deal with having left the US after an overstay. No matter what the I-94 says, the overstay started at 90 days after admission since the couple was not married in that time period. 180 days after that a ban was incurred.

At that point, on or about December 01, 2007, there was a 3 yr ban waiveable by an I-601. This was before they even got married. No statement by an immigration judge can change that unless he had allowed an in-country filing, which he also conceded was beyond his power.

The OP needs to consult with A GOOD ATTORNEY asap, try Heather Poole or Laurel Scott or one of their associates. They both have experience with Brazil and will be able to give you a quick answer about the necessity of a waiver. Also start doing research about the I-601. www.immigrate2us.net is a good place to start.

[payxibka 10,045]

Wow. 8 pages of argument.

Please note that visapro DID NOT SAY that you were eligible to file the I-130 AND adjust status from within the United States. It said

Important: If you married the U.S. citizen but not within the 90-day time limit, your spouse must now file USCIS Form I-130, Petition for Alien Relative.

meaning consular processing. . .

That point is moot though. Now, the OP has to deal with having left the US after an overstay. No matter what the I-94 says, the overstay started at 90 days after admission since the couple was not married in that time period. 180 days after that a ban was incurred.

At that point, on or about December 01, 2007, there was a 3 yr ban waiveable by an I-601. This was before they even got married. No statement by an immigration judge can change that unless he had allowed an in-country filing, which he also conceded was beyond his power.

The OP needs to consult with A GOOD ATTORNEY asap, try Heather Poole or Laurel Scott or one of their associates. They both have experience with Brazil and will be able to give you a quick answer about the necessity of a waiver. Also start doing research about the I-601. www.immigrate2us.net is a good place to start.

does not automatically mean consular processing... there are a handful ofl members on VJ in the past, who accidentally married outside the 90 days, and have adjusted status as has been explained, SUCCESSFULLY

Edited October 29, 2009 by payxibka

[belinda63 3,038]

She is now living in Brazil. Therefore she must go through the consulate which means they must file for a visa and overcome the bar.

[emt103c 10]

"Accidentally" does not usually imply nine months later. . . .

[klicristina 0]

This is a reply to Payxibka, emt103c, lucyrich, and anyone who left a reply.

You all have made very strong points. I don't know what the correct interpretation of the law is for my situation. How would your opinion changed if I were to tell you that at the removal hearing the judge wrote in the court order that my wife did not violate the 180 day rule? This judge was not any judge. He was and is the Chief Judge of the Baltimore immigration court in Maryland. Here's his exact words, "Respondent is deporting US prior to her 180 day to AVOID the 3 year ban and immigrate as an immediate relative."

Further feedbacks will be greatly appreciated.

[emt103c 10]

I would say he went by the I-94 and that you need to ask one of the attorneys that I recommended or one that is equally as experienced. From my reading (I'm not an attorney) the overstay started as soon as the 90 days was up and the bar was incurred upon exit from the U.S. He was counting from the erroneous I-94 markings not from the visa entry date. As far as I know, Consular officers must follow the law as written.

[payxibka 10,045]

"Accidentally" does not usually imply nine months later. . . .

outside the 90 day period is outside the 90 day period whether 1 day or 100 days or 1000 days...

An alien may be eligible to apply for status adjustment if they are an immediate relative of a USC and as long as they enterd the country LEGALLY... A legal entry is evidenced by an I-94. A spouse is an immediate relative of a USC.... As long as the K-1 entrant married the original petitioner then they have a path and can adjust. The process is accomplished by an I-130 petition & I-485. Other than the required marriage to the original petition, this process is no different than an alien who entered on a B-2, J-1, VWP, etc...

[Stephen + Elisha 92]

I would say he went by the I-94 and that you need to ask one of the attorneys that I recommended or one that is equally as experienced. From my reading (I'm not an attorney) the overstay started as soon as the 90 days was up and the bar was incurred upon exit from the U.S. He was counting from the erroneous I-94 markings not from the visa entry date. As far as I know, Consular officers must follow the law as written.

Considering that waiver applications are adjudicated by USCIS and not DOS, I would think that an immigration judge's finding that no ban was incurred will carry significant weight at the consulate.