Anybody given up on getting a K1 Visa and just got married?

[Frustrated74 23]

I would definitely consider speaking to an immigration attorney about this.  While you know of course that your fiance had no intention of committing fraud and staying when she entered, the fact is that if she is on a tourist visa, she has a k-1 visa on the go, that could be a serious problem for USCIS.  An immigration attorney will likely be able to tell you how they are ruling on this particular issue right now.  All of us that have gone through the immigration process know that there isn't a lot of logic with how immigration works. Yes, there is a pandemic and circumstances change, but immigration may not take that into consideration.  It really depends on what the policy from the Trump Administration is telling them.  Going by how much he is trying to keep people out, I wouldn't be risking it since it would be a permanent bar for her if they said there was immigration intent.  

[HRQX 4,145]

1 hour ago, Frustrated74 said:

but immigration may not take that into consideration.

If there was material misrep then can't simply AOS. But the burden of proof is on USCIS to prove material misrep occurred. Per precedent cases, AOS for IR can't be denied solely on preconceived immigrant intent:

Matter of Battista https://www.justice.gov/sites/default/files/eoir/legacy/2012/08/14/3036.pdf

Matter of Cavazos https://www.justice.gov/sites/default/files/eoir/legacy/2012/08/17/2750.pdf

[VisaDonnie 54]

1 hour ago, HRQX said:

If there was material misrep then can't simply AOS. But the burden of proof is on USCIS to prove material misrep occurred. Per precedent cases, AOS for IR can't be denied solely on preconceived immigrant intent:

Matter of Battista https://www.justice.gov/sites/default/files/eoir/legacy/2012/08/14/3036.pdf

Matter of Cavazos https://www.justice.gov/sites/default/files/eoir/legacy/2012/08/17/2750.pdf

Well, she/I have no control over a pandemic. So there must be some leniency given if you came here and have a return ticket but couldn’t return home. These are things neither of us have control over. I’m doing everything I can do to keep her here legally, like filing for an extension of the B2 Visa. But again these are extenuating times and I am sure I’m not the only person in this situation.

[vtstang66 65]

I didn't read the whole thread so sorry if I missed something...

Get married and start the 485 process!  I wish I had done that.  My wife and I were right at the end (so we thought) of the CR-1 process, she was here in the U.S., and her 6-month tourist stay was expiring.  We decided to send her back because we were close but I wish I could do it over again.  I would have forked over that $1200 in a heartbeat and we'd still be together instead of waiting for the consulates to start operating again....months from now.....

 

I spoke to a couple immigration lawyers at the beginning of this year and they told me the 485 AOS process is taking about 6 months right now.  They also told me about the 90 day rule.  Once she's been here 90 days USCIS will give you the benefit of the doubt that she didn't come here with the intent to immigrate, i.e. it was a decision that you came to honestly after the fact and nothing was done in bad faith.  Once you send her back, who knows when you'll see her again?

[Crazy Cat 41,830]

5 minutes ago, vtstang66 said:

They also told me about the 90 day rule.  Once she's been here 90 days USCIS will give you the benefit of the doubt that she didn't come here with the intent to immigrate, i.

That is a myth.  No such rule exists for USCIS.

[vtstang66 65]

4 minutes ago, Lucky Cat said:

That is a myth.  No such rule exists for USCIS.

I believe it's more of an informal understanding.  This came from a reputable immigration attorney.

*edit...OP should talk to his own attorney rather than take me at my word on this.  But I personally wish I had jumped ship on the CR-1 and gone for the 485 process.

Edited July 20, 2020 by vtstang66
add info

[HRQX 4,145]

11 minutes ago, vtstang66 said:

They also told me about the 90 day rule.  Once she's been here 90 days USCIS will give you the benefit of the doubt that she didn't come here with the intent to immigrate

"Although referred to by DOS as a “rule” in its Foreign Affairs Manual (FAM), the 90-day rule is not a regulation. It is DOS guidance to its officers, and as such, the 90-day rule is not binding on USCIS officers." https://www.uscis.gov/policy-manual/volume-8-part-j-chapter-3

[Crazy Cat 41,830]

10 minutes ago, vtstang66 said:

I believe it's more of an informal understanding.  This came from a reputable immigration attorney.

USCIS conducts Adjustment of Status interviews.....not DOS.  USCIS is not bound by DOS guidance.   The rule does not exist for Adjustment of Status applicants.  Intent is established at time of POE....not 30, 60, or 90 days afterwards.

Edited July 20, 2020 by Lucky Cat

[Sinead91 249]

5 hours ago, Frustrated74 said:

I would definitely consider speaking to an immigration attorney about this.  While you know of course that your fiance had no intention of committing fraud and staying when she entered, the fact is that if she is on a tourist visa, she has a k-1 visa on the go, that could be a serious problem for USCIS.  An immigration attorney will likely be able to tell you how they are ruling on this particular issue right now.  All of us that have gone through the immigration process know that there isn't a lot of logic with how immigration works. Yes, there is a pandemic and circumstances change, but immigration may not take that into consideration.  It really depends on what the policy from the Trump Administration is telling them.  Going by how much he is trying to keep people out, I wouldn't be risking it since it would be a permanent bar for her if they said there was immigration intent.  

While I understand this sentiment, immigration attorneys are not employed by USCIS. It is their interpretation of the laws. Any lawyer I have spoken to in the past has given different information. One said red. One said blue. One said yellow. One said 3. One said you can’t visit while you have a k1 in process. They don’t have access to extra information, they see the same EO that we do...only perhaps they deal with different people and have different statistics.

 

it is not written anywhere that you cannot void your k1 and do an AOS (once it was not your intention at CPD) Yes, CR1 would be the best option but alas, here we all are. others who were in the same situation as OP and myself have said that they voided their k1 and did this process without any problems, it was not even questioned at their interviews. 
 

just my two cents on the topic. Some people feel safer using a lawyer and giving someone 6,000$ to transfer their information to paper, some people prefer to do it themselves....

[Crazy Cat 41,830]

11 hours ago, Sinead91 said:

it was not even questioned at their interviews. 

Agree.  The one time I have heard it even mentioned was when a person specifically made recorded statements during an secondary interview when entering for a visit.  Those specific statements were then seen as possible misrepresentation at the interview. I'm not sure how that case ended.  I understand there were some language barriers involved. I have not seen another instance of intent even mentioned in any other Adjustment of Status interview.  

There are many, many, many posters here who have successfully completed Adjustment with absolutely no issues at all.  

Edited July 20, 2020 by Lucky Cat

[mudman64 0]

So I guess It is Better to get married first then