Spontaneous Wedding with no K1

[JFH 12,191]

Be sure that the AOS is right for you and your circumstances. Although this is an option to you, and even considered a "golden opportunity" by some, it isn't necessarily the best way. Your new spouse will be unable to work or leave the country for many months. You are filing for EAD and AP as well, aren't you? Depending on what she did for a living in her home country, this could be disastrous. In many fields, the longer you are out, the harder it is to get back in and even harder to get back in at the same level. I've always had a career and have climbed the corporate ladder very nicely to where I am now. If I was unable to work for several months it would undo several years of hard work. I would also have to take a substantial pay cut. Not to mention I'd be bored out of my skull and lonely without my work and the people I meet. Many people who take this route find themselves suffering from depression after a while. For me, starting my new job less than 2 weeks after I arrived really helped with settling in.

 

It might sound very romantic with the whirlwind wedding and so on but real life often has other plans for us. Make sure you follow the right path. It isn't always the most obvious one. 

[caliliving 606]

40 minutes ago, JFH said:

Be sure that the AOS is right for you and your circumstances. Although this is an option to you, and even considered a "golden opportunity" by some, it isn't necessarily the best way. Your new spouse will be unable to work or leave the country for many months. You are filing for EAD and AP as well, aren't you? Depending on what she did for a living in her home country, this could be disastrous. In many fields, the longer you are out, the harder it is to get back in and even harder to get back in at the same level. I've always had a career and have climbed the corporate ladder very nicely to where I am now. If I was unable to work for several months it would undo several years of hard work. I would also have to take a substantial pay cut. Not to mention I'd be bored out of my skull and lonely without my work and the people I meet. Many people who take this route find themselves suffering from depression after a while. For me, starting my new job less than 2 weeks after I arrived really helped with settling in.

 

It might sound very romantic with the whirlwind wedding and so on but real life often has other plans for us. Make sure you follow the right path. It isn't always the most obvious one. 

Not necessarily! I didn't work for many years and I got back in it quickly! I just said I decided to travel for a few years (which I kind of did).

If you are here and can aos and don't need to go home it's a no brainer! Of course if you need to go home and do stuff u should. Plus, it takes a bit of time to find a good career might as well start looking now and interviewing 

[USC4SPOUSE 506]

19 hours ago, RyanIndiana said:

My then fiance came over to the states on her tourist visa just like any other time to visit me but this time I popped the question and we spontaneously married at the courthouse and got our official marriage license.  We just mailed in our Application for the I130 and we are now freaking out because we can't file the I485 yet because she needs to get her medical exam still.  Her exit date is Jan 28th and we are worried about her overstaying the esta/visa and getting in trouble even though we plan on filing the I485 as soon as possible.  Has anyone dealt with a situation like this before?  Also what happened if either the I130 or I485 gets rejected because of a bad form would she have to go back home then come back so we can refile?

RyanIndiana,

 

congratulations on your marriage! It's exactly what I did with my spouse. We debated between taking the K-1 route, K-3 (spouse visa) and or simply getting married and having my spouse adjust status without having to leave the country.

 

Medical exam - it is only valid for 1 year and with current wait times in some states, 13 to 14 months in Minnesota (lucky me), it's better to wait until you have an interview date. You may get a letter stating you did not file the I-693 and to bring it to the interview. 

 

Go ahead and file the I-485. Overstaying her visa is not a huge issue. You won't trigger a ban for the first 6 months. Thus, the first 6 months of overstay are "forgiven" because she is married to a US citizen. 

 

As soon as you file for adjustment of status, you've expressed the intent to immigrate and that invalidates her tourist visa. Marrying you also confirmed that intent. Therefore, it's best to just file all forms concurrently; except for the I-693 (Medical) and wait for her Employment Authorization/Advance Parole -combo card. She should not leave the US before having the combo card in hand. 

 

If you file a bad form; say an outdated form, then you'll get a letter (RFIE - I think) telling you to use an updated form. She does not need to leave the country. The entire application will not be denied on the spot for that reason either. You simply replace the outdated form with a current one. It's best to print them off the USCIS.gov website.

 

Hope this helps. Best of luck!

 

[USC4SPOUSE 506]

10 hours ago, FluffyBalls said:

17 hours ago, TNJ17 said:

You missed a grand opportunity there. Because you got married spontaneously, you qualified to AOS without filing I130. But because you filed a petition for CR1, now she’s gonna have to leave the country before her allowed date on the i94, and stay in her home country while CR1 visa is processed which is currently taking 12-14 months. She can visit you, but because you have now filed a petition for an immigrant visa for her, she might have a hard time getting into the country if she can’t prove to the officer at POE that she’s not trying to bypass CR1 processing. 

Geowrian is correct. Marriage based Adjustment of status I-485 cannot be accomplished without first filing the I-130 which establishes the nature of the relationship.

While the I-130 is pending, she can apply for a K-3 visa. It's a non-immigrant visa for spouses of US citizens which requires processing through National Visa Center. It's quick. The spouse returns to her home country and can return on that visa BEFORE the I-130 is approved. If the I-130 is approved fast, then sure, the K-3 visa is not an option. 

 

 

[USC4SPOUSE 506]

8 hours ago, JFH said:

Be sure that the AOS is right for you and your circumstances. Although this is an option to you, and even considered a "golden opportunity" by some, it isn't necessarily the best way. Your new spouse will be unable to work or leave the country for many months. You are filing for EAD and AP as well, aren't you? Depending on what she did for a living in her home country, this could be disastrous. In many fields, the longer you are out, the harder it is to get back in and even harder to get back in at the same level. I've always had a career and have climbed the corporate ladder very nicely to where I am now. If I was unable to work for several months it would undo several years of hard work. I would also have to take a substantial pay cut. Not to mention I'd be bored out of my skull and lonely without my work and the people I meet. Many people who take this route find themselves suffering from depression after a while. For me, starting my new job less than 2 weeks after I arrived really helped with settling in.

 

It might sound very romantic with the whirlwind wedding and so on but real life often has other plans for us. Make sure you follow the right path. It isn't always the most obvious one. 

K-3 visa is an option if someone needs to return to his/her home country. There are always options. 

 

[geowrian 22,338]

3 hours ago, USC4SPOUSE said:

Go ahead and file the I-485. Overstaying her visa is not a huge issue. You won't trigger a ban for the first 6 months. Thus, the first 6 months of overstay are "forgiven" because she is married to a US citizen. 

The ban starts at 180 days of unlawful presence regardless of your marital status.

Being married to a USC lets them concurrently file (file the I-485 at the same time OR while the I-130 is still pending).

Filing an I-485 grants authorized stay, which stops the clock on unlawful presence while the case is pending.

 

Example: Somebody enters the US on an ESTA (90 days legal stay). Then they stay in the US for 240 days (150 days of overstay). Then they properly file an I-485 on day 241. At that point, they would not incur a ban even if they stayed another 6 months and then exited the US (since the 150 days of unlawful presence stopped accruing). They would be ineligible for an ESTA still (day 1 of unlawful presence does this) and have a really, really hard time getting a new tourist visa, but there would be no actual bar in place.

Note that none of the above is unique to having a USC spouse. Again, the USC spouse is just the basis for filing the I-485 without having an already approved I-130 with a PD that is current (since the PD is always current for the immediate relative category).

 

3 hours ago, USC4SPOUSE said:

If you file a bad form; say an outdated form, then you'll get a letter (RFIE - I think) telling you to use an updated form. She does not need to leave the country. The entire application will not be denied on the spot for that reason either. You simply replace the outdated form with a current one. It's best to print them off the USCIS.gov website.

An outdated, required form would have the packet rejected and returned (with uncashed payment still), which can be refiled with the updated form.

 

3 hours ago, USC4SPOUSE said:

While the I-130 is pending, she can apply for a K-3 visa. It's a non-immigrant visa for spouses of US citizens which requires processing through National Visa Center. It's quick. The spouse returns to her home country and can return on that visa BEFORE the I-130 is approved. If the I-130 is approved fast, then sure, the K-3 visa is not an option. 

K-3 is obsolete. Current USCIS policy is to adjudicate the I-129F for a K-3 alongside the matching I-130. Current NVC policy is that if an approved I-129F arrives at the same time or after an approved I-130, then the I-129F is administratively closed. As such, K-3s just don't happen (and would take 9+ months to obtain anyway).

[RyanIndiana 0]

Thank you everyone for all of your responses!!!  What i'm getting out of this even more now is don't do the I693 medical exam until we are asked for it before a possible interview?  So we should send in the I485 without the medical exam or records and wait for them to make us send one in couldn't that lead to a much longer wait what is everyones experience with that?

[USC4SPOUSE 506]

41 minutes ago, RyanIndiana said:

Thank you everyone for all of your responses!!!  What i'm getting out of this even more now is don't do the I693 medical exam until we are asked for it before a possible interview?  So we should send in the I485 without the medical exam or records and wait for them to make us send one in couldn't that lead to a much longer wait what is everyones experience with that?

Most people bring the I-693 to the interview. Not sending it in now will not set back the process; in my opinion. 

 

[caliliving 606]

3 hours ago, RyanIndiana said:

Thank you everyone for all of your responses!!!  What i'm getting out of this even more now is don't do the I693 medical exam until we are asked for it before a possible interview?  So we should send in the I485 without the medical exam or records and wait for them to make us send one in couldn't that lead to a much longer wait what is everyones experience with that?

I sent the medical exam with my application. My wait was only 4 months from sending it in to approval...I would just do it all at once. 

[EvieMN 105]

File I485 before her legal stay expires.

You can bring the results from her medical exam at the interview, that's what I'm doing.

It's not a problem at all.

[USC4SPOUSE 506]

17 hours ago, geowrian said:

The ban starts at 180 days of unlawful presence regardless of your marital status.

Being married to a USC lets them concurrently file (file the I-485 at the same time OR while the I-130 is still pending).

Filing an I-485 grants authorized stay, which stops the clock on unlawful presence while the case is pending.

 

Example: Somebody enters the US on an ESTA (90 days legal stay). Then they stay in the US for 240 days (150 days of overstay). Then they properly file an I-485 on day 241. At that point, they would not incur a ban even if they stayed another 6 months and then exited the US (since the 150 days of unlawful presence stopped accruing). They would be ineligible for an ESTA still (day 1 of unlawful presence does this) and have a really, really hard time getting a new tourist visa, but there would be no actual bar in place.

Note that none of the above is unique to having a USC spouse. Again, the USC spouse is just the basis for filing the I-485 without having an already approved I-130 with a PD that is current (since the PD is always current for the immediate relative category).

 

An outdated, required form would have the packet rejected and returned (with uncashed payment still), which can be refiled with the updated form.

 

K-3 is obsolete. Current USCIS policy is to adjudicate the I-129F for a K-3 alongside the matching I-130. Current NVC policy is that if an approved I-129F arrives at the same time or after an approved I-130, then the I-129F is administratively closed. As such, K-3s just don't happen (and would take 9+ months to obtain anyway).

I never said that if you are married to a US citizen, the ban does not start for you at 180 days. 

We will agree to disagree on the k-3. If OP's wife needed to go back to her country and tie loose ends, then a K-3 is an option. If you deem it, impractical or even obsolete, well, that's your opinion. OP should be aware of ALL options out there and that is what these forums are for. Adjusting status and being locked in the US until your Advance parole is approved, is not for everyone. Thus, I can see the use of a K-3 visa; especially, because his wife still has a valid tourist visa. If she returns on that visa, she may not be able to enter the US. Therefore, again, a k-3 might be worth exploring for them. 

All the best,

 

USC4SPOUSE

[geowrian 22,338]

2 hours ago, USC4SPOUSE said:

We will agree to disagree on the k-3. If OP's wife needed to go back to her country and tie loose ends, then a K-3 is an option. If you deem it, impractical or even obsolete, well, that's your opinion. OP should be aware of ALL options out there and that is what these forums are for. Adjusting status and being locked in the US until your Advance parole is approved, is not for everyone. Thus, I can see the use of a K-3 visa; especially, because his wife still has a valid tourist visa. If she returns on that visa, she may not be able to enter the US. Therefore, again, a k-3 might be worth exploring for them.

K-3 is still on the books, but current policy makes obtaining one virtually impossible, as noted above. It would result in the I-129F being administratively closed and the I-130 remaining to proceed with a CR-1. I'm not saying a K-3 wouldn't useful....just that it almost certainly won't be issued. Whether or not it exists or has benefits isn't helpful if they can't get it.