AOS

[Maire 1]

I brought my fiance with a K1 visa (fiance). His 90 days expired January 19th and since he was having a hard time adjusting to the new life and the relationship was very rocky with constant fights and arguments, I decided not to get married. However, we worked things out and we decided to get married last Friday. Now, is the AOS process different or the same as if we had gotten married within the 90 days?

I have trying to contact USCIS to tell me what forms to complete and to ask this question...but it is impossible to speak to a representative, just the automated system. Does anyone knows?

He is dying to start working and obtain a driver's license. Any advice on this issue will be highly appreciated.

[sachinky 465]

No.

He can no longer apply for AOS from his K-1.

He can however apply for AOS as an immediate relative of a USC.

I believe there are some extra forms and $ involved in this process.

Good luck! Glad things worked out for you both!

Edited April 14, 2010 by sachinky

[Danu 19]

At this point you will need to do all the normal AOS forms plus the I-130 (petition for a spouse) to adjust, as you were over the 90 days. The cost is an extra $355.

[alex and astrid 38]

You may want to prepare yourself to explain to USCIS why you did not mary within the ninety day period, because that was the specific term of the visa. They are going to ask that if you get an interview.

[Otto 83]

The process isn't just different - it is a whole new process. Its good you guys worked things out - follow the guide (below) for best results.

This would be the Guide you'd need to follow now. HERE

[Deputy Purple 1,294]

He can no longer apply for AOS from his K-1.

He can however apply for AOS as an immediate relative of a USC.

Wait... I thought there is specifically a condition of the K-1 that the beneficiary can only adjust status based on marriage to the original petitioner within the 90 day window.

If my understanding is correct then he must leave the US and they have to start at the beginning of the CR-1 process...

Edited April 14, 2010 by Bob 4 Anna

[Maire 1]

Wait... I thought there is specifically a condition of the K-1 that the beneficiary can only adjust status based on marriage to the original petitioner within the 90 day window.

If my understanding is correct then he must leave the US and they have to start at the beginning of the CR-1 process...

But I am the original petitioner....its just that we married after the 90 days...

[sachinky 465]

Not at all, Bob4Anna.

He will simply now adjust his status as an immediate relative of a USC. Just like AOS from B-2 or F-1.

This involves the use of the I-130 which wouldn't have been necessary if they'd gotten married before the 90 days were up.

[Deputy Purple 1,294]

But I am the original petitioner....its just that we married after the 90 days...

Yeah but the you failed to get married within the 90 days therefore you didn't comply with the terms of the Visa any more than someone who marries a different person within the 90 days.

BTW, he's approaching 3 months of illegal presence so he's about 1/2 way to a 3 year entry ban. Maybe a quick phone call to an immigration attorney would be worth the 30 minutes.

[sachinky 465]

Read the guides. And follow it.

Good luck!

[Otto 83]

Yeah but the you failed to get married within the 90 days therefore you didn't comply with the terms of the Visa any more than someone who marries a different person within the 90 days.

Kind of irrelevant - they'd simply need to follow the spousal process (outlined in the guides for couples who are both in the US). They do not need to leave the country and start a CR-1; in fact, they should NOT leave.

[Deputy Purple 1,294]

Not at all, Bob4Anna.

He will simply now adjust his status as an immediate relative of a USC. Just like AOS from B-2 or F-1.

This involves the use of the I-130 which wouldn't have been necessary if they'd gotten married before the 90 days were up.

I'm not saying that I know for sure either way, just what I understood the requirement to be. Granted his entry was legal but it was with a very specific set of conditions placed on his ability to adjust status. If you enter on a B-2 Visa and it has an annotation that says something like "AOS Prohibited" then it would be foolish to attempt to adjust from that entry.

By the logic above he could have married someone else after the 90 days and adjusted status using the I-130 plus AOS packet but again that is in violation if the terms of his Visa which state that is ability to adjust status is limited to one option: via the K-1 through marriage to his original petitioner within 90 days.

Personally I would seek the advice of a competent immigration attorney before proceeding especially as the illegal presence is already piling-up.

To me this is just another scenario where caution would better serve all parties involved...

[Maire 1]

perhaps I forgot to mention he is Cuban...he cannot get deported....

[Maire 1]

I am getting worried

[sachinky 465]

He should be fine since he did marry his ORIGINAL USC petitioner.

If he married within the 90 days, he'd adjust off his K-1 entry.

Now he will adjust as a spouse of a USC.

Plenty of cases right here on VJ to read about.

You can always consult with a lawyer to put your mind at ease.

Do NOT leave the country. There is no need to.