AOS, CR1, etc.

[ganache18 0]

My fiancee and I applied for a K1 visa last year and were approved. I am the US petitioner. She came here in July but we did not use the visa; she returned to her home country. A few months later she came back on a B1/B2 visitor visa. She's currently authorized to stay here until April 2017. She did not come here a few months ago with the intent to marry although we understand that the immigration officer could determine that she did. She has been here for more than 90 days which we understand increases our success in proving there was not an intent to marry. Until recently, we understood that we could get married and file for AOS and, even though she will be out of status by the time the papers are approved, this wouldn't be a problem. Now, we face uncertainty. Any recommendations? What's the possibility of success if we file for AOS, get denied (and she's here illegally at that time--after April) to appeal? What are the implications for the CR1 visa at that point? How does the overstay affect the future of her ability to travel in and out of the US? Help?

[DrEllaNJ 288]

if at any point, she lied to CBP or immigration officers, you have a problem. However, if she truthfully answered all questions and didn't misrepresent the situation, I think you can marry and file for AOS. Be prepared for extra scrutiny and I hope you have a good reason why the K-1 visa wasn't used and why she came back on a visitor's visa.

[KierenHby 899]

She did use the K1 visa if that's what she entered on last July; she just never got married while admitted on the K1. 

[bunkx 25]

If she's a citizen of one of the 7 countries listed on the executive order, I would be extra careful, we don't know how this will affect AOS. If they straight up deny it, she's out of status. If she gets an NOA and the case just remains pending for a while, she will be fine for the time being... 

[ganache18 0]

She is a citizen of one of the seven countries. 

[bunkx 25]

Just now, ganache18 said:

She is a citizen of one of the seven countries. 

 

Oh boy... This just got more complicated... The deal right now is that she will not be allowed reentry if she departs. However since being a US spouse, overstay is forgotten/forgiven, you could apply for AOS. Only thing I'm worried about is if the AOS gets denied, she becomes out of status and overstayed. That makes her subject to removal. It's dangerous territory. As of now even people with green cards are being denied entry if they're from one of the seven countries.

 

You said she's authorized until April. That's past the 90 days of the executive order. I'd say let her just stay here until the executive order isn't in effect anymore and then apply for AOS. Just pray they don't extend the executive order... 

[DrEllaNJ 288]

oh my, I wondered about that. I'm so sorry about your predicament.

[KierenHby 899]

9 minutes ago, ganache18 said:

She is a citizen of one of the seven countries. 

Oh boy. Good luck! 

[Messan 0]

This is what am being afraid of a swell.  I want to Overstay so we can marry and apply. We definitely don't want to be separated ever again. The marriage is real but how would I prove it was never preplanned? 

How do you prove no intent?