Attorney advice on voiding K1 and getting married instead

[Pickle_slushy 4]

Me (US) and my fiancé (Canada) have been going through the k1 visa process. We were 1 week from the interview in March when it got canceled due to covid. She has been here since the border closure in March (got laid off temporarily). We've been waiting patiently to see what will happen with the border closure and the consulate closure. Tbh it's not looking good the more time passes.

 

Because of this, we decided to contact an immigration attorney to get his advice. He seems to think the consulates will be closed for normal processing for much longer than we expected (8-12 months) and also the border. 

His advice to us was this: Since she is already in the US, and we don't want to be separated, we should just get married here, and file a I-130 petition for an immediate relative. He said that since she arrived in the states with no intent to get married, and that circumstances have drastically changed, that this should cause no alarm for things such as visa fraud.

 

Do you think this a good idea? Is the attorney just trying to scare us into hiring him to help with the whole case? We would hate to void our k1 case, and then also run into issues with the new petition!

 

Another issue is that she can only stay here for so long in the states (6 months). Can anybody provide clarification on this? When does the 6 month period start? She was never issued a I-94 (arrived via land port), and did not receive a stamp, nor has she ever when she visits. She has came here on and off every other weekend for the past 2 years up until March when she's been here since. 

 

We worry that if she has to go back soon, that we will be separated for a long time due to border closures. This is one reason we are considering switching, so that she can at least remain here with me. 

[Crazy Cat 42,097]

The attorney is correct that it is not visa fraud to adjust status if there was no intent when entering the US.  Just be aware of the work and travel restrictions after filing the I-485.  She will likely not be able to work or travel outside the US for 6 months (or maybe longer).  Once a proper I-485 is filed, she will be granted authorized stay in the US while the I-485 is pending.  No one knows when the consulates will resume normal operation.  The attorney is merely speculating.

Edited July 8, 2020 by Lucky Cat

[Crazy Cat 42,097]

One more thing.  You can do the process yourself.  Unless you have a very complicated case, there is no need to pay an attorney thousands of dollars.

[Pickle_slushy 4]

20 minutes ago, Lucky Cat said:

One more thing.  You can do the process yourself.  Unless you have a very complicated case, there is no need to pay an attorney thousands of dollars.

You're right. I did do the whole K1 process myself, I just worry that switching process will cause issue and it would be nice to have a lawful presence. 

[Crazy Cat 42,097]

4 minutes ago, Pickle_slushy said:

You're right. I did do the whole K1 process myself, I just worry that switching process will cause issue and it would be nice to have a lawful presence. 

"Switching the process" will cause no issues........multiple people here have done that due to the virus.  Step one is to marry.

 

***Moved to Adjustment of Status from Work, Student, and Tourist Visas*******

[carmel34 3,650]

17 hours ago, Pickle_slushy said:

I did do the whole K1 process myself

If you did the I-129F petition on your own, you can do adjustment of status, yes there are a few more forms but it's all about filling in the requested information, triple-checking everything, attaching the required documents and evidence.  Hopefully she has the civil documents with her or can have them sent to her without too much delay.  Save the thousands of dollars you would spend for an attorney and do it yourself, you'll need that extra money for the additional AOS fees anyway.  As you have questions, just ask them here, there are so many awesome people willing to share their knowledge.  Follow the AOS guide and spend lots of time on the USCIS website.  Get married and file soon, as fees are going up...  that is, if you decide to abandon the K-1 process and start down the AOS road.  Good luck whatever you decide.

[Pickle_slushy 4]

9 minutes ago, carmel34 said:

If you did the I-129F petition on your own, you can do adjustment of status, yes there are a few more forms but it's all about filling in the requested information, triple-checking everything, attaching the required documents and evidence.  Hopefully she has the civil documents with her or can have them sent to her without too much delay.  Save the thousands of dollars you would spend for an attorney and do it yourself, you'll need that extra money for the additional AOS fees anyway.  As you have questions, just ask them here, there are so many awesome people willing to share their knowledge.  Follow the AOS guide and spend lots of time on the USCIS website.  Get married and file soon, as fees are going up...  that is, if you decide to abandon the K-1 process and start down the AOS road.  Good luck whatever you decide.

Obviously I have lots of research to do still, but do I have to submit a I-130 along with that? 

[SusnOwen 162]

1 hour ago, Pickle_slushy said:

Obviously I have lots of research to do still, but do I have to submit a I-130 along with that? 

Yes, you will need to submit the I-130, I-485, ... - Also there is a new form I-944 that is a b**** to get through.  The guides are really good and give detailed information.  We are in the same situation - My fiance came for a visit in February, and hello Covid!  We decided that after such a long period of being locked in the house together 24/7, we didn't want to be apart for a lengthy who knows how long time period.

[HRQX 4,145]

On 7/8/2020 at 2:43 PM, Pickle_slushy said:

We've been waiting patiently to see what will happen with the border closure

Note that Canadian citizens can still return to Canada via land, air, and sea. Also, she could return to visit the US via air:

The CBP restrictions are only for land entry and ferry service: https://www.federalregister.gov/documents/2020/03/24/2020-06217/notification-of-temporary-travel-restrictions-applicable-to-land-ports-of-entry-and-ferries-service

[HRQX 4,145]

On 7/8/2020 at 3:03 PM, Lucky Cat said:

She will likely not be able to work or travel outside the US for 6 months (or maybe longer).

My guess is "maybe longer" based on the upcoming USCIS furloughs. I've modified your comparison chart for cases like this:

AOS
    Expensive (filing fees and Civil Surgeon exam fees) and requires a lot of paperwork
    Spouse can not leave the US until she/he receives approved Advance Parole (expect longer delays due to upcoming USCIS furloughs)    
    Spouse can not work until she/he receives EAD (expect longer delays due to upcoming USCIS furloughs)    
    Some people have had problems with driver licenses, leases, bank account during this period. Also ineligible for SSN before EAD.    
    Spouse will not receive Green Card for many months after Adjustment of Status is filed.

  

CR-1
    Less expensive than AOS
    Spouse can immediately travel outside the US    
    Spouse is authorized to work immediately upon arrival.    
    Spouse receives Social Security Card and Green Card within 2 or 3 weeks after entering the US    
    Opening a bank account, getting a driver's license, etc. are very easily accomplished with GC, SS card, and passport.

    Spouse has legal permanent Resident status IMMEDIATELY upon entry to US.