zach

hi:
my fiancee and me broke up and k1 visa expired over a year now. we got back together now. can i still adjust my status if we get married?

Elvira

Yes but better be quick. And don't leave the US until you have your GC.

Folinskyinla

Hi:

The following is based upon the premise that you did NOT leave when the K-1 admission expired.

The Immigration & Nationality Act says yes. HOWEVER, the 1997 amendments to the adjustment regulations say NO. So, you will have a fight on

Just Jenney

Right above where the petitioner signs his/her name on the I-129F form it reads:

YOUR CERTIFICATION: I am legally able to and intend to marry my alien fiancé(e) within 90 days of his or her arrival in the UnitedStates. I certify, under penalty of perjury under the laws of the United States of America, that the foregoing is true and correct.

Both the USC fiance(e) and foreign fiance(e) also have to submit statements of intent to marry with the I-129F petition, stating that they are legally able to and will marry within 90 days of the foreign fiance(e)'s arrival. Mark also said that during his K1 interview he was asked if we were marrying within 90 days, to which he said yes.

So, all that being the case, wouldn't it be a problem that they didn't marry within 90 days of his arrival on the K1 visa?

~ Jenney

andrea874

Thats just stating their intentions beforehand... intentions change...

Rete

Curious about something here. Way back when this forum was created (1998), the advice was that if you entered with a K-1 visa you HAD to marry the one who petitioned for you. If you didn't marry them, you were not free to marry anyone else and stay to adjust status. You could return home and return and marry someone else but not enter on the K-1 petitioned by X and then come to the US stay and marry Y.

So if this petitioner is going to marry X who originally petitioned for them where is the fight? They may not have married within the 90 days but the letter was one of intent and at the time of submission that was the intent. Problems in the relationship arose and they broke up but eventually reunited and are planning on marrying each other. So he is essentially fulfilling one aspect of the K-1 but after marriage would have to include the I-130 when filing for AOS.

So Mr. F please explain to the ignorant where the fight comes in?

Folinskyinla

Hi:

If they don't marry within 90 days -- then alien loses privilege of adjusting under the K-1. However, it was well established law and practice from 1970 to 1997 [27 years] that if the couple later married, then a conventional I-130 could be done. The 1986 "IMFA" legislation added in the restriction that any adjustment could only be done by marriage to the I-129 petitioner -- for 11 years, practice and law allowed a conventional I-130/485 as long as the I-129F and I-130 were by the same US citizen.

The 1996 legislation made extensive changes to the Immigration & Nationality Act and yet made NO CHANGE to the K-1 provisions. Nonetheless, the 1997 regulations which were expressly promulgated to implement the 1996 legislation added in the limitation that a K-1 entrant could ONLY adjust based upon the marriage entered into within 90 days.

Those same regulations also added in a limitation eliminating the right of "arriving aliens" in removal proceedings from adjusting even though, again, there was no change in the statutory language. Five circuits have now ruled on THAT issue and 4 of the 5 have invalidated that portion of the regulation. [The alien in the one contrary circuit, the 8th, is now seeking cert to the Supreme Court.]

Folinskyinla

Hi:

An addition to my explanation to Jenny -- the 3/10 year "unlawful presense" clock also applies. So, lets say, Mr. Oscar petitions for Ms. A as a K-1, Ms. A enters the US as a K-1, gets one look at his living quarters and goes "no way I can ever live with this guy". In the meanwhile, she has attended a party at the home of Mr. Oscar's best friend, Mr. Felix, -- and Ms. A and Mr. Felix experience love at first sight. Ms. A and Mr. Felix can marry, but Ms. A has to leave before she invokes the bar to coming back. [BTW, the foregoing is NOT a hypothetical other than the names].

OldJohnDoe

Mr.Folinskyinla,
Thats a funny anecdote. Were the living quarters that bad to warrant a change of mind on the K-1 lady? The moral of that anecdote is to make living quarters attractive enough lest a K-1 female changes her mind...is it?

==========

Folinskyinla

Hi:

BTW, this was based upon a real case where the husband and wife were grilled about the circumstances before the I-130 was approved. Wife obtained an Immigrant Visa with no problem. Caveat: the INS/Consular interpretation of the 3/10 year bar taken in this case would NOT work today given subsequent developments.