Fiance Inside the US while filing K1 Visa

[seasaffa 4]

Hello!
My fiance and I recently got engaged. She is here on a j-1 visa that expires in July of 2022 (not subject to the 2 year foreign residency requirement). She has not been home in a few years, and she and I would like to visit before us getting married it possible.

 

I see two options:

1. We get married close to the end of her visa and then file for AOS

2. We file for K1 Visa early next year while she is still in the USA. When her visa expires in July she will head back to South Africa to complete the interview scheduling, medical exam etc.. and then return on the K1 Visa after approval.

 

Risks related to Covid travel bans aside, is option 2 possible?

We were planning to discuss this in depth with a immigration attorney, but were curious if anyone had any knowledge regarding this.

Thanks!

Edited December 9, 2021 by seasaffa

[powerpuff 6,697]

9 minutes ago, seasaffa said:

Risks related to Covid travel bans aside, is option 2 possible?

It is but keep in mind the K1 process will be somewhere between 1-2 years to complete. Then add another 1-2 years to AOS once she’s here.

 

Regarding option 1. You’re saying you want to get married close to the end of her visa. Is this because she wants to visit South Africa in between, then come back and get married/file for AOS? If so, that’s illegal. She cannot enter the US with her J visa with the intent to adjust status. If you were to get married today and file for AOS, that would be fine since she didn’t have that intent when she entered last. 
 

If visiting home is urgent, then I would advise you to get married here and then apply for CR1 spousal visa. Processing time is almost the same as K1 nowadays and you can avoid AOS. 
 

 

[seasaffa 4]

5 minutes ago, powerpuff said:

Regarding option 1. You’re saying you want to get married close to the end of her visa. Is this because she wants to visit South Africa in between, then come back and get married/file for AOS? If so, that’s illegal. She cannot enter the US with her J visa with the intent to adjust status. If you were to get married today and file for AOS, that would be fine since she didn’t have that intent when she entered last.

 

Just some clarification for option 1, she is already in the USA on a J1 visa for the past few years, so if option 2 is not feasible, we would just get married before her J1 expires and then file AOS. She would stay in the USA until AOS finishes. This is less ideal since this would mean she wont be able to visit home, but is the backup plan

[powerpuff 6,697]

10 minutes ago, seasaffa said:

Just some clarification for option 1, she is already in the USA on a J1 visa for the past few years, so if option 2 is not feasible, we would just get married before her J1 expires and then file AOS. She would stay in the USA until AOS finishes. This is less ideal since this would mean she wont be able to visit home, but is the backup plan

I think that would be the best option. My advice is don’t wait until close to her visa expiration. Get the ball rolling - get married as soon as you can and file for AOS. She can concurrently file for EAD and AP (and it’s free) which will allow her to work and travel. So she doesn’t have to wait until GC to visit her family. EAD/AP are generally taking 8+ months right now. 
 

to clarify: I know she’s in the US right now. What I’m trying to say is if you wait until the end of her visa to marry with the plan of her visiting back home and then coming back still as a J1 holder with the intent to AOS, that’s not legal. 

Edited December 9, 2021 by powerpuff

[arken 4,197]

If you two marry soon and file the petition/AOS complete package soon, she could get EAD/AP by the time her J1 expires. She could then travel abroad using AP and work in the US using EAD.

[Ontarkie 14,221]

~~Moved to What Visa Do I Need, from K1 P&P - as the OP has not filed for anything yet and is exploring his options~~

[Merica-n 65]

9 hours ago, seasaffa said:

My fiance and I recently got engaged. She is here on a j-1 visa that expires in July of 2022 (not subject to the 2 year foreign residency requirement). She has not been home in a few years, and she and I would like to visit before us getting married it possible.

 

I see two options:

1. We get married close to the end of her visa and then file for AOS

2. We file for K1 Visa early next year while she is still in the USA. When her visa expires in July she will head back to South Africa to complete the interview scheduling, medical exam etc.. and then return on the K1 Visa after approval.

 

Risks related to Covid travel bans aside, is option 2 possible?

We were planning to discuss this in depth with a immigration attorney, but were curious if anyone had any knowledge regarding this.

Thanks!

I had a similar situation to you.  I let my Fiance leave the country and I regret it.  My fiance had the 2 year bar, and we were scared of the 2 year bar waiver being rejected and my fiance having to go back home eventually for 2 years and be jobless for 2 years.  So she my left and went back home.  Now almost 2 years later, I really regret the decision.  I know you don't have a 2 year bar, but you should talk with an attorney.   I'm not an attorney and can't give legal advice, but most immigration attorneys will tell you that it is almost always a better option to file immediately and not let someone leave.    If she stays here, you can control the process and I believe you have more options if they reject for any reason.  With a K1, you just have this long waiting period and in some ways life has just stopped.  We can't have kids till she gets here.  Our time zones are totally different and my early mornings and late nights are full of video calls, because that's the only time we can talk.  I've spent every new years, thanksgiving, christmas, etc with no significant other.  I can't even go visit, because of the travel restrictions.  It's miserable.  If I had it to do all over, I would have never let her go, and paid some lawyers and fought the 2 year bar.  I know your situation is a little different, but learn from my mistake.

 

Also from a more logical and not emotion stand point, If you get a K1, then she will come here and adjust status and not be able to go back home for a time period anyways, and the fees and legal expenses if you decide to hire a lawyer will also be more expensive.

Edited December 10, 2021 by Merica-n

[saksnoot 31]

13 hours ago, powerpuff said:

I think that would be the best option. My advice is don’t wait until close to her visa expiration. Get the ball rolling - get married as soon as you can and file for AOS. She can concurrently file for EAD and AP (and it’s free) which will allow her to work and travel. So she doesn’t have to wait until GC to visit her family. EAD/AP are generally taking 8+ months right now. 
 

to clarify: I know she’s in the US right now. What I’m trying to say is if you wait until the end of her visa to marry with the plan of her visiting back home and then coming back still as a J1 holder with the intent to AOS, that’s not legal. 

Just to add a bit to this. Your case has greater weight and there are more opportunities to appeal in case of any issues for a spouse greencard than for a K1. US and international law generally guarantee many more benefits regarding immigration for spouses than for fiancees.

 

also, @powerpuff is making a very important point. With the J1, every time your fiancee enters the US, she cannot have intent to file AOS. So far, your fiancee hasn’t had this intent while entering this US. So the only time you could legitimately file AOS (barring after entering on a K1 if you went that route) is at this point, while she is in the US on her J1 but at the poe with her J1 there was no intent to file AOS. Some people thing “how would USCIS even know?” but it’s not worth the risk. Could lead to a lifetime ban, and even if there are waivers, it’s a lot more time, money, and hassle. 

Edited December 10, 2021 by saksnoot

[iwannaplay54 985]

22 hours ago, seasaffa said:

Hello!
My fiance and I recently got engaged. She is here on a j-1 visa that expires in July of 2022 (not subject to the 2 year foreign residency requirement). She has not been home in a few years, and she and I would like to visit before us getting married it possible.

 

I see two options:

1. We get married close to the end of her visa and then file for AOS

2. We file for K1 Visa early next year while she is still in the USA. When her visa expires in July she will head back to South Africa to complete the interview scheduling, medical exam etc.. and then return on the K1 Visa after approval.

 

Risks related to Covid travel bans aside, is option 2 possible?

We were planning to discuss this in depth with a immigration attorney, but were curious if anyone had any knowledge regarding this.

Thanks!

Those with knowledge would advise you to get married and file ASAP.  You’re a poster couple for Adjustment of Status and should not run into any issues.  You also should have no need for an attorney.

 

Best of luck to both of you and congrats on your engagement.

Edited December 10, 2021 by iwannaplay54

[retheem 564]

23 hours ago, seasaffa said:

Hello!
My fiance and I recently got engaged. She is here on a j-1 visa that expires in July of 2022 (not subject to the 2 year foreign residency requirement). She has not been home in a few years, and she and I would like to visit before us getting married it possible.

 

I see two options:

1. We get married close to the end of her visa and then file for AOS

2. We file for K1 Visa early next year while she is still in the USA. When her visa expires in July she will head back to South Africa to complete the interview scheduling, medical exam etc.. and then return on the K1 Visa after approval.

 

Risks related to Covid travel bans aside, is option 2 possible?

We were planning to discuss this in depth with a immigration attorney, but were curious if anyone had any knowledge regarding this.

Thanks!

Imajin your spouse coming to your home through the back door, but because she didn't come in through the front door,  then you want her to go out and come back again through the front door. See how ridiculous that idea is?

Option 2 is that ridiculous. 

Why would you want an immigration lawyer for this?

[seasaffa 4]

Thanks for all the thoughts and replies! We have decided to get married in the months leading up before her visa expires and file for AOS.

[Redro 4,611]

15 hours ago, seasaffa said:

Thanks for all the thoughts and replies! We have decided to get married in the months leading up before her visa expires and file for AOS.

You've made your choice, but I'd seriously consider getting married ASAP and filing for AOS and EAD and AP.

As a fellow South African, I'm dying to go back home but the travel ban makes things difficult. The sooner you get married, the sooner your spouse will be able to go back home to visit family and she won't be subject to a travel ban as US citizens, LPRs and spouses of US citizens are exempt. 

Best case scenario things work out and gets to go home at the end of her J1 using advance parole and then she can return to the States and wait for the green card. My biggest regret is not filing AOS when we had the chance in 2020... won't go into details. But, it was an option. 

[milimelo 4,477]

16 hours ago, seasaffa said:

Thanks for all the thoughts and replies! We have decided to get married in the months leading up before her visa expires and file for AOS.

I’d get married this year - good for your taxes (mfj) and you’re already building evidence for interview.