K1, AOS

[isleta521 5]

Seems to me would be easier just to go downtown and say "I do" than to go through the extra hassle of fileing the I-130 and extra costs (if any). Then again waiting over two years to file AOS could (or not) raise some eyebrows. Just my thoughts, would not want to be out of status or at a minimum get in status asap (im talking about filing for AOS after marriage) to get out of USCIS he11 as quickly as possible and begin working if one wants, ect.

[Yodrak 7]

stinger,

Married or not, when the 90 days have passed the alien is required by law to leave the country, because their allowed period of stay has expired. As a practical matter, the word 'should' makes more sense than 'has to' (or 'must').

Significantly, there is an 'unless' - unless the alien has an adjustment of status application pending, in which case the law allows them to remain in the country until the application has been adjudicated. If the alien has married within the 90 days, as they should have, then it is possible that they will have an adjustment application pending when the 90 days are up. An alien who has not married cannot have an adjustment application pending - no basis to make the application - but married or not married, either way the alien is in the same out of status situation if there is no adjustment application pending.

Yodrak

The big difference that a K-1, who married before the 90 days were over, is in compliance with the law. Someone who doesn't marry within the 90 days granted through the K-1 status is not in compliance with the law and has to leave the country. Based on U.S. INA § 214(d).

Technically the big difference is made by the point when the marriage is taking place. The paperwork isn't relevant in this specific matter, but it is the marriage that counts.

[stinger157 0]

stinger,

Where did you get this bit of mis-information - the part about why the visa is valid for 6 months?

What does being able to apply for adjustment more than 90 days after entry have to do with the period of validity of the visa? The visa has limited value only in narrow and unusual circumstances after entry, and has no value at all (other than as a momento) once the marriage takes place.

Yodrak

According to U.S. INA Paragraph 214(d) the marriage has to take place within the 90 days or the non-citizen has to leave the country. You can file the AOS after the 90 days, but that does not mean the marriage can take place after the 90 days.

For that reason the visa is valid for 6 months.

...

OH, sorry Yodrak,

I got this bit of mis-information out of my own passport. Too bad the consulates in germany are so misinformed.

Yodrak, after the visa is issued you have 6months to enter the United States and after this you have 90 days to get married. Means basically the visa has a max. validity of 6 months, but just for one entry.

And no, ChristinaM. One of the documents you need to submit with your application is that you are planning to marry within the 90 days after your arrival. And the law says that the non-citizen has to leave the country if you don't marry within the 90 days.

[Kez/JWolf 6]

That may be so for K1 rule...... but if you were inspected at your POE and are now married to a USC you can file for I-130 and AOS together and you can remain in the US while it is being processed.... regardless of the fact that the visa you entered on has expired....

so NO she does not have to leave the country... but they will have added expence.

Kezzie

[stinger157 0]

That may be so for K1 rule...... but if you were inspected at your POE and are now married to a USC you can file for I-130 and AOS together and you can remain in the US while it is being processed.... regardless of the fact that the visa you entered on has expired....

so NO she does not have to leave the country... but they will have added expence.

Kezzie

Kezzie,

as far as I read they want to marry after the 90-day period. And there is a law that says, "go back to your country..." What is there not to understand?

[Kez/JWolf 6]

yes I understand they wish to marry after the 90 days and all they need to do is file for I-130 and AOS based on the fact she is married to a USC and she can remain regarless of the fact she did not complete the K1....

Once you are married to a USC any time out of status is forgive at interview and her status will change to Adjustment Pending as soon as the AOS paperwork is filed....

Kezzie

[stinger157 0]

yes I understand they wish to marry after the 90 days and all they need to do is file for I-130 and AOS based on the fact she is married to a USC and she can remain regarless of the fact she did not complete the K1....

Once you are married to a USC any time out of status is forgive at interview and her status will change to Adjustment Pending as soon as the AOS paperwork is filed....

Kezzie

So according to you... who cares about laws...

I am shocked and not amused...

[ChristinaM 0]

the law says that the non-citizen has to leave the country if you don't marry within the 90 days.

You're missing the point, Stinger. You don't have to leave at the end of the 90 days because you didn't get married, you are supposed to leave because your visa has expired and you are no longer in status. Just like if you are on the VWP - your authorised stay is 90 days.

Marrying does not give you automatic extension of K1 status, nor does it give you any other kind of status. Filing for AOS is what gives you status, allbeit "pending adjustment" status.

As such, if you marry within the 90 days but do not file for AOS, you should technically also leave the country, by your views.

Edited October 6, 2006 by ChristinaM

[stinger157 0]

the law says that the non-citizen has to leave the country if you don't marry within the 90 days.

You're missing the point, Stinger. You don't have to leave at the end of the 90 days because you didn't get married, you are supposed to leave because your visa has expired and you are no longer in status. Just like if you are on the VWP - your authorised stay is 90 days.

Marrying does not give you automatic extension of K1 status, nor does it give you any other kind of status. Filing for AOS is what gives you status, allbeit "pending adjustment" status.

As such, if you marry within the 90 days but do not file for AOS, you should technically also leave the country, by your views.

You are missing the point, dear Christina. Not marrying in the time frame stated in the supporting documents to the petition means this person submitted wrong information to get a visa.

Where is the difficulty to go to the court house, town hall, city hall or Las Vegas and get officially married. Any other ceremony can follow later.

So far I thought this website is there to provide people with advise according to the law and not to provide people with advises that might be there around the law. But who cares, it is not your life you are playing with. Just someone online.

[Kez/JWolf 6]

The law allows for someone who is married to a USC to remain in the US and do AOS as long as they were inspected at POE.....

here is a link... go read http://www.uscis.gov/graphics/howdoi/LPReligibility.htm

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.

Kezzie

[ChristinaM 0]

Please note that I am not "playing with" anyone's life - I have not advised anyone of anything. I am merely debating a point of contention with you.

Now you're talking about a material representation in order to obtain a benefit from the US government, which is a completely different issue than simply whether or not an AOS is completed off the back of an I-129F or I-130 petition (which is, essentially, what this argument is, as the overstay will be forgiven and is a moot point).

If the OP obtained the K1 with no intention of marrying within the 90 days, you may have a point. It may be an incredibly difficult one to prove, since they presumably had no wedding plans at that time (since in the first post the OP said "we may be marrying outside the 90 days") and were indeed, at that time, intending to marry within the timeframe allowed by the visa. However, material representation is murky, and requires a deliberate intent to deceive. Do you honestly and truly see from the OP's posts that they had no intention, even before they received the K1, of marrying within the 90 days? I don't.

Which means that we're once again back to the issue of what they "should" do - which is, legally, have the fiance leave the country and reapply for another K1, whether they should marry and then have the fiance leave the country if they're unable to file the AOS within the 90 days (again, what should legally happen), or whether accruing a little overstay and filing based on the I-130 would make more sense at this point.

You cannot stand firm on this point of law and then tell people that it's OK to file for AOS almost whenever they feel like, regardless of the expiry of their I-94. Both situations involve accruing overstay time. VJ seems to condone belated filing of the AOS from couples who married within the 90 days, why not from one who married outside of it?

Holy Moly, Batman - how many commas can I get in one post?!

Edited October 6, 2006 by ChristinaM

[meauxna 15]

stinger,

Where did you get this bit of mis-information - the part about why the visa is valid for 6 months?

What does being able to apply for adjustment more than 90 days after entry have to do with the period of validity of the visa? The visa has limited value only in narrow and unusual circumstances after entry, and has no value at all (other than as a momento) once the marriage takes place.

Yodrak

According to U.S. INA Paragraph 214(d) the marriage has to take place within the 90 days or the non-citizen has to leave the country. You can file the AOS after the 90 days, but that does not mean the marriage can take place after the 90 days.

For that reason the visa is valid for 6 months.

...

OH, sorry Yodrak,

I got this bit of mis-information out of my own passport. Too bad the consulates in germany are so misinformed.

Yodrak, after the visa is issued you have 6months to enter the United States and after this you have 90 days to get married. Means basically the visa has a max. validity of 6 months, but just for one entry.

And no, ChristinaM. One of the documents you need to submit with your application is that you are planning to marry within the 90 days after your arrival. And the law says that the non-citizen has to leave the country if you don't marry within the 90 days.

AND there is a remedy in place.

Not everything is as black and white as it apparently is in Germany?

What you were told at the ConSec is true, IF you are only counting AOS from a K-1. If they marry out of the 90 days, they're out of K status. Therefore, any subsequent AOS is not based on the K.

[Jenn! 918]

Boy, I'm glad I'm not in this situation because if I were, I'd be pretty confused right about now....

[ChristinaM 0]

The main point is that if the OP marries outside the 90 days allotted on the K1 visa, they must also file an I-130 Immediate Relative petition in order to have some basis for and therefore complete the AOS, Jenn.

Edited October 6, 2006 by ChristinaM

[stinger157 0]

Please note that I am not "playing with" anyone's life - I have not advised anyone of anything. I am merely debating a point of contention with you.

Now you're talking about a material representation in order to obtain a benefit from the US government, which is a completely different issue than simply whether or not an AOS is completed off the back of an I-129F or I-130 petition (which is, essentially, what this argument is, as the overstay will be forgiven and is a moot point).

If the OP obtained the K1 with no intention of marrying within the 90 days, you may have a point. It may be an incredibly difficult one to prove, since they presumably had no wedding plans at that time (since in the first post the OP said "we may be marrying outside the 90 days") and were indeed, at that time, intending to marry within the timeframe allowed by the visa. However, material representation is murky, and requires a deliberate intent to deceive. Do you honestly and truly see from the OP's posts that they had no intention, even before they received the K1, of marrying within the 90 days? I don't.

Which means that we're once again back to the issue of what they "should" do - which is, legally, have the fiance leave the country and reapply for another K1, whether they should marry and then have the fiance leave the country if they're unable to file the AOS within the 90 days (again, what should legally happen), or whether accruing a little overstay and filing based on the I-130 would make more sense at this point.

You cannot stand firm on this point of law and then tell people that it's OK to file for AOS almost whenever they feel like, regardless of the expiry of their I-94. Both situations involve accruing overstay time. VJ seems to condone belated filing of the AOS from couples who married within the 90 days, why not from one who married outside of it?

Holy Moly, Batman - how many commas can I get in one post?!

Well, I disagree with everyone who thinks there is no need to care about laws. I married the day after I arrived here and we sent the AOS application the day we got the marriage license. I think that was 11 or 12 days after marriage.

I think it is not fair to leave the spouse without an employment authorization or without a green card. I also don't think there is no excuse not to marry in the 90 days since the costs you have to pay in the city hall or at the court house are (at least here in Las Vegas) around $100.

I can understand, even I can't follow this persons preparation, if someone doesn't have the money to file the application in time. But this would be the only excuse I would accept at least 50%. The papers should be there, or after the K-1 procedure, on the way. There is not much more someone needs to file for AOS.

That is the whole difference, even I don't agree with someone filing for AOS after 90 days, you see my point where I accept an excuse under certain and strictly defined circumstances. Any other excuse is a truckload of BS.