What are my options?

[Lililand 5]

He came here on a K1 visa. We married last year but haven't filed for AOS yet. His great grandma is really sick and he would like to go see her before it's too late. What are our options? Is AP only for those who have AOS filed and pending?

[Darnell 8,478]

Is AP only for those who have AOS filed and pending?

Yes.

[L and T 9]

If you got married last year and haven't filed for AOS yet, he is out of status by now, so I would recommend filing AOS as well as EAD/AP as soon as possible. However, if he has been out of status for more than 180 days (after the I-94 expired), AP would be of no use, as a 3 year ban would have been triggered. So it looks like the only way would be to file for AOS asap and wait for the green card. If he leaves the country before having a green card in hand, he would then be inadmissable to the U.S. Then you could only apply for a CR1 spousal visa, but I assume then a waiver for the 3 year ban might be needed.

[aaron2020 11,651]

Two options.

1. Stay in the US and remain a K-1 overstay until he adjusts and get a green card; or

2. Return home, you file for a petition which will lead to a denied CR-1 visa because of his more than 180 days of unlawful presence in the US leading to a 3 or 10 years ban, and you hope your hardship waiver is accepted.

[Andrea&Henry 311]

In order to get the AP he needs to adjust first but if he has more than 180 days after his i94 he can get a 3 years ban (if he tries to reentry the country with an AP) the wise thing to do is adjust ASAP and WAIT for his greencard.