I WAS A K-1 AND MY I-94 WAS VALID FOR 15 MONTHS

[rebeccajo 14]

pushbrk is right. The time to press this point would have been immediately after the immigration judge issued his ruling. While he may have erred in ruling that your K-1 status prevented you from adjusting on the basis of an I-130, you would have needed to appeal the ruling in order to pursue this. By leaving the US under voluntary departure, this avenue was permanently closed to you.

It sounds like you may have been done a disservice by your immigration attorney in that no appeal was pursued. Perhaps he deemed your best option to be accepting the voluntary departure and reapplying with a spousal visa from outside the US. In any case, what's done is done, and you now need to focus on the present—the upcoming interview and the need to prepare for the waiver process if necessary. Good luck to you.

An I-130 cannot be filed after removal procedures have begun. The judge made no error.

Got that. I was speaking based on the OP's statement that the judge would not allow his wife to adjust status based on an I-130 because she had entered as a K-1. It's now clear that the OP was mistaken in his understanding of the ruling: the judge could not allow them to adjust status based on an I-130 because that I-485 and underlying I-130 were not filed until removal procedures had already begun.

Unfortunately, the OP erred in failing to marry within the 90 days, then compounded that error by attempting to adjust based on marriage outside the 90 days without filing an I-130 to provide a basis for adjustment (since the K-1 no longer provided such a basis because the 90 day condition was not fulfilled).

Have I missed anything?

I think you've got it all except the tiny tidbit that I believe they filed the I485 before the proceedings began. And that's just a really little detail.

Kinda makes you wonder though - why things were done that way.

[baron555 934]

The essence of my wife's case is a human error by CBP at the airport on the I-94 because it drives everything in the case.

Actually the essence of your problem is the failure to marry within 90 days. Why did you not?

You compounded your problem by not uderstanding the driving requirement and failing to realize that the incorrectly dated I-94 did not "allow" her to remain.

That was a flawed belief.

Anyway, she has the judge's judgement about leaving before the 180 ban triggered. You are both married, so to me, your next path is look into a CR-1 or DCF.

Edited October 30, 2009 by baron555

[rebeccajo 14]

pushbrk is right. The time to press this point would have been immediately after the immigration judge issued his ruling. While he may have erred in ruling that your K-1 status prevented you from adjusting on the basis of an I-130, you would have needed to appeal the ruling in order to pursue this. By leaving the US under voluntary departure, this avenue was permanently closed to you.

It sounds like you may have been done a disservice by your immigration attorney in that no appeal was pursued. Perhaps he deemed your best option to be accepting the voluntary departure and reapplying with a spousal visa from outside the US. In any case, what's done is done, and you now need to focus on the present—the upcoming interview and the need to prepare for the waiver process if necessary. Good luck to you.

An I-130 cannot be filed after removal procedures have begun. The judge made no error.

Got that. I was speaking based on the OP's statement that the judge would not allow his wife to adjust status based on an I-130 because she had entered as a K-1. It's now clear that the OP was mistaken in his understanding of the ruling: the judge could not allow them to adjust status based on an I-130 because that I-485 and underlying I-130 were not filed until removal procedures had already begun.

Unfortunately, the OP erred in failing to marry within the 90 days, then compounded that error by attempting to adjust based on marriage outside the 90 days without filing an I-130 to provide a basis for adjustment (since the K-1 no longer provided such a basis because the 90 day condition was not fulfilled).

Have I missed anything?

Guys,

I don't know whether such a law exists for a K1 visa to adjust status outside the 90 day window by filing conjointly a I-485 and I-130 based on my wife being my immediate relative. I have asked and no one has directed me to an official website or some written law that states this option in writing. I consulted with 6 lawyers and none have even mentioned that this option is possible. I hope that my luck is not this bad. Some one refer me to www.visapro.com but my lawyer told me that the website is incorrect. So I am back to square one again. I would add that if this option is available, I would believe that the judge would have given me this opportunity to file. At the very least, the judge would have told us what we should have filed 485 and 130 together. In fact, I had already filed the I-130 3 months ahead of the removal hearing and the judge was awared of this. Maybe, I was barred from filing because my wife was in removal procedure. And another thing about the judge's comment about 180 day, I don't think that a judge with 30+ years on the bench would not know that I-94 for a K1 is valid for only 90 days. You tell me.

The essence of my wife's case is a human error by CBP at the airport on the I-94 because it drives everything in the case. It is not a moot point just because my wife had left the country because the I-94 could trigger a ban depending on what date you go by. The 15 month date writtened on my wife's I-94 or the 3 month date used by USCIS. Yes, we can get waiver, but who want to go through that if they don't have to. I personally agreed with the judge that my wife should not be accountable for a mistake made by the CBP. If the interviewer disagrees, then we have to cross that bridge when we get there. Until then, I am seeking your opinion and comment revelant to my situation. I don't that there have ever been a case like my wife's.

OP- It's not that there is a 'law' so to speak that applies specifically to K1 entrants who fail to marry within the 90 day time frame. Rather, it's the fact that your wife became just like any other out-of-status alien when you failed to marry. And the procedure for adjusting (based upon a marriage to a US citizen) for any alien present in the US who entered legally (out of status now or not) is to file I-130 and I-485.

If you had indeed filed I-130 before the proceedings began, your attorney should have filed an appeal for protection of that I130 during the removal proceedings.

I really don't mean to be rude and I hope you don't take it this way - but something about all this is not 'right'. I don't know if you were merely a victim of poor lawyering (happens) or if the courts were wanting to make an 'example' out of your wife's overstay (happens) or if there is something else about your case we don't know.

Edited October 30, 2009 by rebeccajo

[klicristina 0]

pushbrk is right. The time to press this point would have been immediately after the immigration judge issued his ruling. While he may have erred in ruling that your K-1 status prevented you from adjusting on the basis of an I-130, you would have needed to appeal the ruling in order to pursue this. By leaving the US under voluntary departure, this avenue was permanently closed to you.

It sounds like you may have been done a disservice by your immigration attorney in that no appeal was pursued. Perhaps he deemed your best option to be accepting the voluntary departure and reapplying with a spousal visa from outside the US. In any case, what's done is done, and you now need to focus on the present—the upcoming interview and the need to prepare for the waiver process if necessary. Good luck to you.

An I-130 cannot be filed after removal procedures have begun. The judge made no error.

Got that. I was speaking based on the OP's statement that the judge would not allow his wife to adjust status based on an I-130 because she had entered as a K-1. It's now clear that the OP was mistaken in his understanding of the ruling: the judge could not allow them to adjust status based on an I-130 because that I-485 and underlying I-130 were not filed until removal procedures had already begun.

Unfortunately, the OP erred in failing to marry within the 90 days, then compounded that error by attempting to adjust based on marriage outside the 90 days without filing an I-130 to provide a basis for adjustment (since the K-1 no longer provided such a basis because the 90 day condition was not fulfilled).

Have I missed anything?

Guys,

I don't know whether such a law exists for a K1 visa to adjust status outside the 90 day window by filing conjointly a I-485 and I-130 based on my wife being my immediate relative. I have asked and no one has directed me to an official website or some written law that states this option in writing. I consulted with 6 lawyers and none have even mentioned that this option is possible. I hope that my luck is not this bad. Some one refer me to www.visapro.com but my lawyer told me that the website is incorrect. So I am back to square one again. I would add that if this option is available, I would believe that the judge would have given me this opportunity to file. At the very least, the judge would have told us what we should have filed 485 and 130 together. In fact, I had already filed the I-130 3 months ahead of the removal hearing and the judge was awared of this. Maybe, I was barred from filing because my wife was in removal procedure. And another thing about the judge's comment about 180 day, I don't think that a judge with 30+ years on the bench would not know that I-94 for a K1 is valid for only 90 days. You tell me.

The essence of my wife's case is a human error by CBP at the airport on the I-94 because it drives everything in the case. It is not a moot point just because my wife had left the country because the I-94 could trigger a ban depending on what date you go by. The 15 month date writtened on my wife's I-94 or the 3 month date used by USCIS. Yes, we can get waiver, but who want to go through that if they don't have to. I personally agreed with the judge that my wife should not be accountable for a mistake made by the CBP. If the interviewer disagrees, then we have to cross that bridge when we get there. Until then, I am seeking your opinion and comment revelant to my situation. I don't that there have ever been a case like my wife's.

OP- It's not that there is a 'law' so to speak that applies specifically to K1 entrants who fail to marry within the 90 day time frame. Rather, it's the fact that your wife became just like any other out-of-status alien when you failed to marry. And the procedure for adjusting (based upon a marriage to a US citizen) for any alien present in the US who entered legally (out of status now or not) is to file I-130 and I-485.

If you had indeed filed I-130 before the proceedings began, your attorney should have filed an appeal for protection of that I130 during the removal proceedings.

I really don't mean to be rude and I hope you don't take it this way - but something about all this is not 'right'. I don't know if you were merely a victim of poor lawyering (happens) or if the courts were wanting to make an 'example' out of your wife's overstay (happens) or if there is something else about your case we don't know.

Here's is the total truth. This might be the first time that a K1 visa had an error on her I-94 like my wife. We didn't get married because we had disagreements when she first came to the US and we felt that we were not ready to go ahead with the wedding. It took us a several months beyond the 90 day to work out the issues between us. I am not going more details because it is personal and I don't think that it had any bearings on our case other than that it caused us to delay the weddng. Our second mistakes was not filing the AOS properly, which caused her to be put into removal hearing. These discussions are good for our understanding and we appreciate it very much. We are in Brazil awaiting her interview on November 6th in Rio de Janeiro. A point can be made that we should have known the law better. My wish is that she can avoid any bans depending which date the interviewer will go with - the correct date or the wrong date on the I-94. We definitely believe that we had very poor legal advices. We retained one of the top immigration lawyer in the Washington, D.C. area. We went to her with the 485 denial letter in hands, about 4 months before my wife was put into removal hearing. The lawyer filed the I-130 30 days later. We fired her and went with another lawyer because her office was so slow in doing things. Why she didn't file the 485 with the 130, I don't know? I might have trusted her too much. Leave a message if you like.

[john_and_marlene 162]

Here is the reference everyone seems to be looking for from the USCIS website. It used to be easier to find and was on their FAQs, but now is buried deeper.

Fiance(e)

You were a fiancé who was admitted to the United States on a K-1 visa and then married the U.S. citizen who applied for the K-1 visa for you. (If you married the U.S. citizen but not within the 90-day time limit, your spouse also must now file USCIS Form I-130, Petition for Alien Relative ). Your unmarried, minor children are also eligible for adjustment of status. See How Do I Bring My Fiancé to the United States? for more information. If you did not marry the U.S. citizen who filed the K-1 petition in your behalf, or if you married another U.S. citizen or lawful permanent resident, you are not eligible to adjust status in the United States.

http://www.uscis.gov/portal/site/uscis/men...00048f3d6a1RCRD

edited to bold

Edited October 30, 2009 by john_and_marlene

[klicristina 0]

Here is the reference everyone seems to be looking for from the USCIS website. It used to be easier to find and was on their FAQs, but now is buried deeper.

Fiance(e)

You were a fiancé who was admitted to the United States on a K-1 visa and then married the U.S. citizen who applied for the K-1 visa for you. (If you married the U.S. citizen but not within the 90-day time limit, your spouse also must now file USCIS Form I-130, Petition for Alien Relative ). Your unmarried, minor children are also eligible for adjustment of status. See How Do I Bring My Fiancé to the United States? for more information. If you did not marry the U.S. citizen who filed the K-1 petition in your behalf, or if you married another U.S. citizen or lawful permanent resident, you are not eligible to adjust status in the United States.

http://www.uscis.gov/portal/site/uscis/men...00048f3d6a1RCRD

edited to bold

Thank-you

Thank-you

Thank-you

[Stephen + Elisha 92]

Here is the reference everyone seems to be looking for from the USCIS website. It used to be easier to find and was on their FAQs, but now is buried deeper.

Fiance(e)

You were a fiancé who was admitted to the United States on a K-1 visa and then married the U.S. citizen who applied for the K-1 visa for you. (If you married the U.S. citizen but not within the 90-day time limit, your spouse also must now file USCIS Form I-130, Petition for Alien Relative ). Your unmarried, minor children are also eligible for adjustment of status. See How Do I Bring My Fiancé to the United States? for more information. If you did not marry the U.S. citizen who filed the K-1 petition in your behalf, or if you married another U.S. citizen or lawful permanent resident, you are not eligible to adjust status in the United States.

http://www.uscis.gov/portal/site/uscis/men...00048f3d6a1RCRD

edited to bold

Great find.

[klicristina 0]

Here is the reference everyone seems to be looking for from the USCIS website. It used to be easier to find and was on their FAQs, but now is buried deeper.

Fiance(e)

You were a fiancé who was admitted to the United States on a K-1 visa and then married the U.S. citizen who applied for the K-1 visa for you. (If you married the U.S. citizen but not within the 90-day time limit, your spouse also must now file USCIS Form I-130, Petition for Alien Relative ). Your unmarried, minor children are also eligible for adjustment of status. See How Do I Bring My Fiancé to the United States? for more information. If you did not marry the U.S. citizen who filed the K-1 petition in your behalf, or if you married another U.S. citizen or lawful permanent resident, you are not eligible to adjust status in the United States.

http://www.uscis.gov/portal/site/uscis/men...00048f3d6a1RCRD

edited to bold

Great find.

[baron555 934]

We didn't get married because we had disagreements when she first came to the US and we felt that we were not ready to go ahead with the wedding. It took us a several months beyond the 90 day to work out the issues between us.

OK, but didn't you realize that you were supposed to marry within the 90 days or they go back?

We all here try to do the proper thing and follow all the rules to the letter.

I wish you luck but do not feel sorry for what happened.

You two should have had the discussion before she came that at day #90 if it is not working, they go back. No questions asked.

[john_and_marlene 162]

Responses here are far more harsh than those given to other visa/VWP overstays who apply for adjustment based on marriage to a USC after an overstay.

The rules regarding K visas are little different for adjustment of status with the exception that the adjuster can only adjust based on marriage to the K visa petitioner.

Whether you overstay on the VWP, B2 visitor visa, F1, J1, OPT, K-3, K-1 or any other nonimmigrant visa, you are deportable after your authorized stay has expired. This includes K-1 entries who have married within the 90 days, but do not file for adjustment before their I-94 expires.

K-1 entries are often told that they can delay their adjustment with little risk and are often even encouraged to do so. The marriage did nothing to preserve a legal status. After the I-94 expires, they are no different in terms of legal status than someone who did not get married within the 90 days.

NOTE: I would like to say that any advice that indicates there is no time limit for a K1 to file AOS is wrong and should actuallty be against the TOS as it advises illegal overstay.