Would I be hurting our chances if I applied for a K-1 now?

[Rebecca Jo 1,962]

1. You ARE out of status once the I-94 expires. That is definite. However there is a kind of unsaid "path to AOS" status... it's not official, it's just there because of the K1

It's not an unsaid path. It's in the INA that an alien may adjust status if they are married to a USC.

2. The K1 visa permits entry to the US, to marry your petitioner.

Yes.

3. The rules of the K1 state, arrive, marry, then AOS with petitioner

No they don't. The K1 permits entry to marry. That is it's only purpose.

4. The process isn't "complete" until AOS has been filed for and accepted/denied

The alien is not a permanent resident until they adjust status. There is no actual "process".

5. There is no "AOS due date" and as such you are technically "protected".

No that's patently false. You are out of status if your I94 is expired and you have not filed to adjust status. Even if you have filed you are only under color of law as far as DHS is concerned. There is no legally defined immigrant status for persons with an expired I94 and no green card.

6. Because technically your K1 process isn't complete, when you arrive at a deportation hearing, your case is "in process" because you have not been given a chance to file for AOS and they must permit you to do so as there is no AOS "due date" you haven't broken any rules.

No your case is not in process because no process has begun. If you are not removed from the country then that happy circumstance has occurred due to the benevolence of the judge.

7. The main issue is the expired I-94 which puts you "out of status"... technically you broke that "law" but .. ugh it's hard to explain but basically it defers to your entry visa which said you are there to file AOS, and it can be filed "whenever".

Vanessa - that's just silly.

It IS bizarre, I didn't say it wasn't, but that's the law or rather, interpretation of the law (and the many many sections of the law).

You should always try and avoid this though. It's way more stress than anyone should wish on anyone.

[Rebecca Jo 1,962]

Since a spouse of a US citizen is eligible for immediate adjustment of status (Excepting, of course, EWI), they usually would immediately apply for adjustment rather than be deported. It's happened twice that I know of to VJ members - one from a visitor visa here, and one where I cannot find the thread - but he was travelling to renew his passport and got caught. He had come on a K-1, married on time, but was out of status without having filed AOS. Again, there, they were required to file AOS immediately to avoid further trouble.

So yes, marital status can affect the part of deportation where they put you on a one way trip home, but it is no protection to significant legal hassles leading up to that.

Yes, but I think the operative words here are "can affect" with the emphasis on "can". There really is nothing stopping a judge from ordering removal of ANY alien with an expired I94 and no I551. The marital status itself is not a protection from any order of removal.

[pushbrk 13,256]

Yes, but I think the operative words here are "can affect" with the emphasis on "can". There really is nothing stopping a judge from ordering removal of ANY alien with an expired I94 and no I551. The marital status itself is not a protection from any order of removal.

Correct, BECAUSE the alien cannot adjust status on their own and is technically overdue for having done so with the needed cooperation. With the needed cooperation, deportation CAN BE not WILL BE avoided. Without the needed cooperation, deportation is virtually assured.

[Nik+Heather 121]

I agree with both of you Push and Johnny. Regardless of the likelihood of actual departure under deportation orders, I think just the legal problems of getting to that point (or avoiding it) are traumatic enough.

The point that I was making was more along the lines that the way you stay out of trouble is to file for AOS, because if you don't and get caught, your "due date" has arrived!! If in fact you were able to just cruise along in your life without ever adjusting, then these guys would just have to show a marriage certificate and go on their merry way. If you talk about deportation, people start screaming about scare mongering.

[Rebecca Jo 1,962]

I agree with both of you Push and Johnny. Regardless of the likelihood of actual departure under deportation orders, I think just the legal problems of getting to that point (or avoiding it) are traumatic enough.

The point that I was making was more along the lines that the way you stay out of trouble is to file for AOS, because if you don't and get caught, your "due date" has arrived!! If in fact you were able to just cruise along in your life without ever adjusting, then these guys would just have to show a marriage certificate and go on their merry way. If you talk about deportation, people start screaming about scare mongering.

I was pondering over this while enjoying a drink this evening, and my thoughts are that it boils down to an IJ being willing to allow the alien to adjust NOT because they are married (ie because there is some sort of defined legal status for an alien without a green card married to a USC), but because they know the law is complex and because they know dealing with DHS is not cheap.

That sounds like saying a judge is willing to overlook ignorance or dilitoriness of the law. Clearly that happened in the case of the Australian you cited in your post, because that gentleman stated he thought as long as he was married he was in the clear. Since we know ignorance of the law is no excuse, why would a judge allow the alien to correct the situation?

Probably because there is a wailing US citizen spouse in the other room. In other words, the IJ detects the relationship is bonafide.

*edited for clarity*

Edited April 9, 2010 by JohnnyQuest

[pushbrk 13,256]

I was pondering over this while enjoying a drink this evening, and my thoughts are that it boils down to an IJ being willing to allow the alien to adjust NOT because they are married (ie because there is some sort of defined legal status for an alien without a green card married to a USC), but because they know the law is complex and because they know dealing with DHS is not cheap.

That sounds like saying a judge is willing to overlook ignorance or dilitoriness of the law. Clearly that happened in the case of the Australian you cited in your post, because that gentleman stated he thought as long as he was married he was in the clear. Since we know ignorance of the law is no excuse, why would a judge allow the alien to correct the situation?

Probably because there is a wailing US citizen spouse in the other room. In other words, the IJ detects the relationship is bonafide.

*edited for clarity*

A US citizen spouse, ready and able to sponsor their foreign spouse to adjust status.

[blackjeep 0]

I am a firm believer to "things happen for a reason" for her to get denied, there is a purpose. sounds like you are to pushy and dont allow her to think for herself. you seem to want it your way and to convince her to come to America isnt a way to show her you care or love her. To try and come onto the forums with the mentality of "I BET THESE GUYS KNOW THE TRICKS OF THE TRADE" its not that people on here dont want to be helpful. but your pushing a BIG decision onto someone who isnt ready. Slow down, relax, breathe and either 1. work on yours and hers relationship and take it one step at a time, or 2. move on from her. If she isnt wanting the same thing you are.. then your spinning your wheels, plenty of people out there with similar interest as you..Sounds like her interest is her own independant life without needing someone to be there to take care of her.

Goodluck -K-1 isnt a way i would approach the problem.. focus on her feelings before yours at times.

I appreciate your opinion and realize you don't know everything about the circumstances and our relationship, so I thank you for your input but we have a great relationship and I'm very considerate of her needs, wants, and fears. She's an independent thinker and I respect her decisions, so I'd never try to pressure her for something like this... its important that she's happy too or I won't be either.

[Martyshk 137]

That's true.

I'm certainly not going to advocate lying on a visa petition.

I think the whole VJ community would be behind you on this statement. In this process, the more truthful you are, the better your chances. If you don't withhold any information, there's nothing that can trip you up at an interview, for example.

Plus.... lying to the government...yeah....NO

[Martyshk 137]

I appreciate your opinion and realize you don't know everything about the circumstances and our relationship, so I thank you for your input but we have a great relationship and I'm very considerate of her needs, wants, and fears. She's an independent thinker and I respect her decisions, so I'd never try to pressure her for something like this... its important that she's happy too or I won't be either.

You asked a question though and you got the answers based on the question posed.

Lots of people responding here are very knowledgeable when it comes to the immigration process. Also, people are posting with good intentions.

In essence, if you think about it, fiancee visa is for an engaged couple. So that sorta is the whole kit and kaboodle.

[Martyshk 137]

A young single woman applying for a tourist visa from Colombia is almost surely going to be denied because of assumed immigrant intent and lack of strong ties to her home country. Navigating the interview is not an issue.

Somewhere I saw something that indicated they risk (among other things) a "spanking" but I may have misinterpreted MOX on that.

Push:

Bold thing#1 - It's not just Columbia (and you know that better than I do). We entertained the idea for my fiancee to try and get the visitor's visa, but we dismissed it right away, because no way she'd get one because, well, in Ukraine they don't like to give out visitor's visas to young single women (well, not so single, and we didn't want to lie about her being single, so that's why we dropped the tourist visa idea).

Bold thing#2 - Stop by RUB forum, we've discussed that there

[pushbrk 13,256]

Push:

Bold thing#1 - It's not just Columbia (and you know that better than I do). We entertained the idea for my fiancee to try and get the visitor's visa, but we dismissed it right away, because no way she'd get one because, well, in Ukraine they don't like to give out visitor's visas to young single women (well, not so single, and we didn't want to lie about her being single, so that's why we dropped the tourist visa idea).

Bold thing#2 - Stop by RUB forum, we've discussed that there

Yes the list of countries this would be true of is quite long indeed but we're discussing a specific case from Colombia. No cookie for you.

[ramana 0]

We have no intention of lying and we want to do things the right way. We are in a bind and are faced with the possibility that our relationship can't continue so my hope with this thread was to maybe learn more from people who know more about the options than I do. We feel very strongly that we didn't get a fair shot at the tourist visa on two occasions and I'm hesitant to subject her to that process a third time.

I have been showing her pictures and videos of the area.

I think you're missing the point, if she is not interested in making some sort of sacrifice to move, then why are you waisitng your time. We are leaving our loved ones to be with the person that we love. If i were you i would take time to see where the relationship is heading. Since you want it to work so bad, why not move and see. She might change her mind

[Nik+Heather 121]

I think you're missing the point, if she is not interested in making some sort of sacrifice to move, then why are you waisitng your time. We are leaving our loved ones to be with the person that we love. If i were you i would take time to see where the relationship is heading. Since you want it to work so bad, why not move and see. She might change her mind

I think you are missing his point. The reluctance comes from the fact that she is giving up a lot of things and a good life to move to a place where she's NEVER BEEN. You didn't have such a complication, as Canadians can freely visit. She sounds like a pretty smart girl, and I can completely understand the desire to have more data before making such a huge decision and sacrifice. Nik and I would have been able to decide to get married without the three months he was able to spend here. I don't think it has anything at all to do with the relationship itself, other than that the distance has put a strain on them. I found your comment rude and uncalled for.

[toma1 10]

But it's a legally unenforceable document. So there is no risk on the OP's part.

Not sure about I-134, but I-864 is certainly enforceable, and it had been enforced.

[Bobby+Umit 161]

Yes. Though the K1 is technically "dead" on arrival, it is the status under which you arrived and as long as you have followed it's requirements you are protected from deportation. Not from being hassled. As there is no law governing WHEN AOS must be applied for, only that marriage must occur within 90 days, the immigrant is protected by this "lack of law" rather that there actually being a specific law about it.

I understand your point if it's a simple visitors visa type situation but the K1 has it's own specific laws/rules. The immigrant is protected by the law that states "marry in the 90 days then file AOS as soon as possible". They will detain the immigrant (and lots of fees arise from this) and then the judge will instruct the immigrant to file AOS.

I am in no way suggesting this as a course of action and in fact believe you should marry and AOS ASAP... but the law is on the K1's side if it ever is bought before a judge... which I would hope most people would be smart and do everything in their power to try and avoid.

My read of the K-1 and the I-94 differs from yours I suppose.

Take a look at this document - and read over the i-94 and the K-1.

USCIS I-94

Your absolutely right there is nothing written in the K-1 that you have to AOS in the 90 days, because it's understood that the immigrant would follow the rules on the I-94 when it's issued. (VISA <> I-94)