K1 married after 90 days... Are we ok?

[wilkings0224 28]

My wife entered the USA on March 5th 2020 as my fiancé K1,

15 days later everything was closed in NY, and pretty much nationwide, city clerk was closed, we couldn’t go to get married anywhere, later NY was accepting virtual marriage through the “project Cupid”, when I made the appointment they only have available for almost 2 months after, August 8th, which is already past 90 days timeline, we got married on that day,  I called USCIS yo explain the situation, they subject me to file the AOS anyway, well I was worry but I did, yesterday was her interview, the officer told us that we got married after 90 days and that’s a problem, he couldn’t make a decision and the case must continue to see if there is a waiver, that we have to wait for a notice in the mail, I explained the reason why we got married late, it was out of our control, he agreed but same conclusion, 

also we have all in order, she is working paying taxes, never have an issue with the justice and we have a 2 months beautiful baby, I can’t believe we have to go through this for something we couldn’t prevented 😕

[Crazy Cat 41,985]

Did you file an I-130?   That is required if marrying after 90 days.    If you did not file an I-130, then there is no basis for the adjustment of status after 90 days.   The worst case scenario is to file again with an I-130......if they deny the adjustment.

Edited October 19, 2021 by Crazy Cat

[wilkings0224 28]

No, I filed I-485

[aaron2020 11,651]

Just now, wilkings0224 said:

No, I filed I-485

There's your problem.

Since you married after 90 days, you were required to file an I-130 with the I-485.  

[Crazy Cat 41,985]

12 minutes ago, wilkings0224 said:

No, I filed I-485

Then, there was no legal basis for her to adjust status.  The case will be denied.  You will have to refile the I-485 package , along with an I-130, imo.

Edited October 19, 2021 by Crazy Cat

[wilkings0224 28]

5 minutes ago, Crazy Cat said:

Did you file an I-130?   That is required if marrying after 90 days.    If you did not file an I-130, then there is no basis for the adjustment of status after 90 days.   The worst case scenario is to file again with an I-130......if they deny the adjustment.

If I have to file I-130 does she have to exit the USA to wait?

If so, I will be a mess, we have a 2 months daughter, I can’t imagine being without my wife and daughter for that time, especially when she is so little 😕

[Crazy Cat 41,985]

1 minute ago, wilkings0224 said:

If I have to file I-130 does she have to exit the USA to wait?

If so, I will be a mess, we have a 2 months daughter, I can’t imagine being without my wife and daughter for that time, especially when she is so little 😕

No need to exit.  Once she files a proper I-485, she will be granted authorized stay in the US.  

Edited October 19, 2021 by Crazy Cat

[aaron2020 11,651]

Just now, wilkings0224 said:

If I have to file I-130 does she have to exit the USA to wait?

If so, I will be a mess, we have a 2 months daughter, I can’t imagine being without my wife and daughter for that time, especially when she is so little 😕

She does not need to leave the US.  

 

You need to file the I-130, I-485, I-131, I-765, etc.  for her to adjust status in the US.  The I-130 provides the basis for her to adjust status since you married 90 days after she arrived on her K-1. 

[Crazy Cat 41,985]

and her EAD will be voided, so she has to apply for a new one as @aaron2020 just stated. 

[wilkings0224 28]

8 minutes ago, Crazy Cat said:

and her EAD will be voided, so she has to apply for a new one as @aaron2020 just stated. 

 

10 minutes ago, aaron2020 said:

She does not need to leave the US.  

 

You need to file the I-130, I-485, I-131, I-765, etc.  for her to adjust status in the US.  The I-130 provides the basis for her to adjust status since you married 90 days after she arrived on her K-1. 

Thanks for the info, that sucks, which means we have to wait the whole process again, and if her EAD will be voided, she will have to quit her job?

what will happen to her social security number? Will be voided too?

[Crazy Cat 41,985]

Social Security numbers are for life.   

Edited October 19, 2021 by Crazy Cat

[aaron2020 11,651]

Her EAD is valid until the case is denied.  She can continue to work until then.

 

Her SSN is hers for life.  You don't have to do anything about it. 

[Scandi 4,173]

The i-129f petition was the basis for the AOS if you had married within the required 90 days. Since you didn't comply with that requirement you need a new petition - this time the i-130 since you're married now. 

So even if you married after the 90 days, she could still have adjusted her status but with the i-130 petition included. She will have to start over from scratch now, as the i-485 likely will be denied as there was no valid petition to base it on. 

I'm still crossing my fingers that they somehow will approve you guys because of the pandemic making everything much harder. I'm saying "harder" because it wasn't impossible for you guys to get married within the 90 days. You could've had it done in a different state, not all states had as strict lockdowns and closings as NY.

[Crazy Cat 41,985]

1 hour ago, Scandi said:

The i-129f petition was the basis for the AOS if you had married within the required 90 days. Since you didn't comply with that requirement you need a new petition - this time the i-130 since you're married now. 

So even if you married after the 90 days, she could still have adjusted her status but with the i-130 petition included. She will have to start over from scratch now, as the i-485 likely will be denied as there was no valid petition to base it on. 

I'm still crossing my fingers that they somehow will approve you guys because of the pandemic making everything much harder. I'm saying "harder" because it wasn't impossible for you guys to get married within the 90 days. You could've had it done in a different state, not all states had as strict lockdowns and closings as NY.

A quick trip to Las Vegas is one way.... @Loren Y is still marrying VJ members for free, I believe.

[Demise 1,305]

13 hours ago, wilkings0224 said:

My wife entered the USA on March 5th 2020 as my fiancé K1,

15 days later everything was closed in NY, and pretty much nationwide, city clerk was closed, we couldn’t go to get married anywhere, later NY was accepting virtual marriage through the “project Cupid”, when I made the appointment they only have available for almost 2 months after, August 8th, which is already past 90 days timeline, we got married on that day,  I called USCIS yo explain the situation, they subject me to file the AOS anyway, well I was worry but I did, yesterday was her interview, the officer told us that we got married after 90 days and that’s a problem, he couldn’t make a decision and the case must continue to see if there is a waiver, that we have to wait for a notice in the mail, I explained the reason why we got married late, it was out of our control, he agreed but same conclusion, 

also we have all in order, she is working paying taxes, never have an issue with the justice and we have a 2 months beautiful baby, I can’t believe we have to go through this for something we couldn’t prevented 😕

There's no waiver and the I-129F is dead, but that's not a big deal. She can adjust via an I-130/I-485, basically CR6 rather than CF1 adjustment.

 

If she has filed I-485 on the basis of the I-129F/K-1 visa then it's not lost. File I-130, get the receipt notice, contact the service center that has her I-485 and politely ask them to move the I-485 to the I-130, I'm not sure if this can be done this late but worst case scenario she'll be denied and you just refile under an I-130. Only thing's that toast is the filing fee.

https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-8

Edited October 20, 2021 by Demise