How long do we have after K1 visa marriage to adjust?

[belinda63 3,038]

You can AOS anytime you want. Just as someone can come to the US and marry a citizen without filing any immigration paperwork. BUT without the AOS being filed the person is out of status and subject to detention and deportation at any time. And they can't work legally and many other things.

With the K-1 if they marry within the 90 days they can AOS anytime with the I-485. If they marry after 90 days, but only with the original petitioner, they can file the I-130/I-485 and adjust status. The only problem, other than mentioned above, is the medical is only good for one year so if they wait too long a new medical will be needed.

As I pointed out to another person who had not filed AOS for two years for the K-1 beneficiary, what happens if the USC has an issue such as dies, is hospitalized, etc. This leaves the immigrant in a very bad position.

[Bjorn&lyne 20]

So in other words it comes down to if one wants to remain in the US legally with all those benefits or illegally with the possibility of deportations and living in hiding.

[Caryh 5,206]

So in other words it comes down to if one wants to remain in the US legally with all those benefits or illegally with the possibility of deportations and living in hiding.

They certainly do not need to hide. No one is going to come knocking on the door looking for them if they have not filed to adjust status. If they do happen to come across an immigration check point, and they get detained, they will go before an immigration judge who will order them to adjust status within a fixed period of time or face deportation. There is no automatic, bang we caught you, you're being deported now.

In the last immigration reform proposal, that basically went no where, someone has noticed this little loop hole where the K-1 can stay indefinitely and still adjust status. Had it passed, the AOS application would have needed to been filed within 6 months. It didn't say what the penalty was, presumably filing for a CR-1 and AOS concurrently would have been required after that point. But someone has noticed the problems it can cause when people wait indefinitely to adjust status.

[Asia 2,498]

You realize you just contradicted yourself?

You have 90 days to marry via the K-1 visa. However, you MUST adjust status immediately (before the I-94 expires), otherwise you are considered out of status and are inside the USA unlawfully. This is not opinion it is fact.

But do you have to pay an additional fee if you not adjust status right away?

No.

You will however pay an additional fee if you get married after 90 days, since you will have to start I-130 and I-485 and you will have to pay for the whole process once again.

Yes, people should adjust their status immediately, but as we can read on VJ, there's some percent people who don't do that.

I won't judge them, cause it's their decision, it's their choice.

I, personally would save money prior to petitioning a foreign fiancée/spouse.

[whysodifficult? 31]

Without judging anyone's intentions, my observation is that those who chose to bend/break the rules make it more difficult for those who choose to live by the rules.

[KayDeeCee 4,893]

No one is breaking or bending any rules by not filing for AOS within 90 days of arriving with the K-1. There is absolutely no deadline to file. As long as you married within the 90 days of your entry and have not left the US since, then you are eligible to file for AOS, period.

Also, the USCIS would have no idea that you put off filing because you did not have the money to pay for it right away. You do not need to provide an explanation of why you filed late because there is no such thing. There is no deadline to meet.

You will be out of status when the I-94 expires, and there is a small chance of being detained for that. Would not be deported since you are eligible to file for AOS and the IJ would most likely tell you to apply immediately. It is rare, but people have been detained for being out of status. Stay away from border checkpoints and don't use the bus as transportation. File as soon as possible.

Nowhere in the I-485 form instructions does it state a time limit to file and be eligible. As a matter of fact, it states that maintaining status is not a requirement to file for adjustment from a K-1, which equals no deadline to file > http://www.uscis.gov/files/form/i-485instr.pdf

Who May File Form I-485?

3. Based on admission as the fiancé(e) of a U.S. citizen and subsequent marriage to that citizen

A. You may apply to adjust status if you were admitted to the United States as the K-1 fiancé(e) of a U.S. citizen, and you married that citizen within 90 days of your entry.

Who Is Not Eligible to Adjust Status?

6. You failed to maintain your nonimmigrant status, unless your failure to maintain status was through no fault of your own or for technical reasons; unless you are applying because you are:

B. A K-1 fiancé(e) or a K-2 fiancé(e) dependent who married the U.S. petitioner within 90 days of admission

The USCIS site about adjusting status from a K-1 states you should apply for AOS after you marry, and not that it is a must to be eligible.

No mention of a deadline in the laws either > 8 CFR Sec. 214.2(k)(6)(ii)

(k) Spouses, Fiancées, and Fiancés of United States Citizens—

(6) Adjustment of status from nonimmigrant to immigrant.

(ii) Nonimmigrant visa issued on or after November 10, 1986. Upon contracting a valid marriage to the petitioner within 90 days of his or her admission as a nonimmigrant pursuant to a valid K-1 visa issued on or after November 10, 1986, the K-1 beneficiary and his or her minor children may apply for adjustment of status to lawful permanent resident under section 245 of the Act. Upon approval of the application the director shall record their lawful admission for permanent residence in accordance with that section and subject to the conditions prescribed in section 216 of the Act.

By the way, I have never seen a case where someone that entered with a K-1 and was out of status was actually deported. People always talk about how you will be deported for being here illegally and not filing for AOS within 90 days. That 'small' chance of deportation seems to be nonexistent. I have seen the rare cases of being detained while out of status on a K-1, but never a deportation. If someone has links to a case(s) where deportation happened, then please do share. I would be really interested.

Edited November 18, 2014 by KayDeeCee

[Bjorn&lyne 20]

It's weird because it seems like you are in limbo if you do not apply for AoS. If not, then you are not a permanent resident nor are you illegal, nor are you on any form of visa that allows you to work or travel outside the country country. Your status then seems to be in a vacuum.

[Umka36 781]

I would be more concerned about if they were to get divorce before the AOS is filed, because the beneficiary would be SOL having no basis to AOS. That's something to think about if you are the beneficiary, unless that's the plan of the petitioner to be sure the marriage/relationship works out (which would be wrong in my opinion).

Edited November 19, 2014 by Umka36

[Caryh 5,206]

It's weird because it seems like you are in limbo if you do not apply for AoS. If not, then you are not a permanent resident nor are you illegal, nor are you on any form of visa that allows you to work or travel outside the country country. Your status then seems to be in a vacuum.

Legally there are no people in the USA illegally. There are people here without authorization, and there are people who entered without inspection. Some call both these types illegal aliens. Some think illegal aliens are just the ones who cannot change their status to a legal status. Just about everyone considers those who enter without inspection as illegal aliens.

There is no limbo status about it really. The K-1 entrant, who married within 90 days, has stayed over 90 days, but not yet filed to Adjust Status, is in the USA without authorization. Their status is no different legally than someone who came on a visitors visa and failed to leave when the I-90 expired, except they can get legal status by filing to AOS. There is no doubt they are accumulating days of unauthorized stay until they apply. If they had to leave for an emergency to their home country, they would incur the same ban any other overstaying traveler to the USA would receive.

[Bjorn&lyne 20]

So unauthorized is the same as illegal, as the individual does not have the legal status to stay. It's really only a matter of choice of words as the reality and status remains the same. And yes there are people here illegally. Even the USCIS uses the term "illegal alien". http://www.uscis.gov/tools/glossary/legalized-aliens

[Caryh 5,206]

So unauthorized is the same as illegal, as the individual does not have the legal status to stay. It's really only a matter of choice of words as the reality and status remains the same. And yes there are people here illegally. Even the USCIS uses the term "illegal alien". http://www.uscis.gov/tools/glossary/legalized-aliens

illegal alien is a layman's term, so as many layman's terms go, is defined differently by different people. USCIS actual has their technical definitions of what each type is. They might use illegal alien, but when they're defining them legally for admittance or deportation, they'll use their legal definitions, such as presence with out authorization, or entry without inspection. But by layman's terms, a k-1 is essentially an illegal alien after 90 days and before they file to adjust status because they no longer have authorization to be in the USA.

[KayDeeCee 4,893]

If they had to leave for an emergency to their home country, they would incur the same ban any other overstaying traveler to the USA would receive.

No they wouldn't. They can use AP, even with overstay. http://www.visajourney.com/forums/topic/504201-married-for-2-years-but-cant-afford-to-file-aos-until-now/page-3#entry7110669

[Bjorn&lyne 20]

It seems to me it makes most sense to apply for AoS within 90 days, or as soon as the wedding is over, to avoid any issues or end up in limbo and potentially create immigration problems that fully can be prevented, even if that means borrowing money from a friend or relative to pay for the AoS filing. Myself being an immigrant and now a citizen, it never occurred to me to risk being out of status or jeopardize getting my citizenship by not applying for the various visas and adjustments of status as soon as I was eligible. My advice is therefore simple, apply for AoS immediately after the wedding to put any worries and confusions at rest. Take out a personal loan from a bank if needed. Take a temporary second job to pay. The Green Card of the immigrant spouse, in other words the love of the spouse, should definitely be worth a small loan or second job to secure.

[Caryh 5,206]

No they wouldn't. They can use AP, even with overstay. http://www.visajourney.com/forums/topic/504201-married-for-2-years-but-cant-afford-to-file-aos-until-now/page-3#entry7110669

Which is related to having applied to adjust status and having AP. My entire comment was relating to those who do not apply to adjust status and need to leave in an emergency.

[Bjorn&lyne 20]

I just do not see any benefit or reason for not adjusting status as soon as possible after wedding, but quite the contrary in fact.