My wife is currently illegal. I'm a U.S.C and we will need to do an I-601. I was told that if she were to work that would be forgiven since she is the spouse of a USC. She came in with a K-1 but didn't marry the person whom petitioned for her K-1. She has a SSN card but it dosen't say anything like "not authorized to work" etc... It looks like a reg US citizen SSN card. She also has a drivers liscense. She's been in the US for 6 years so far. I was looking at the I-9 and it only requires like a driver's liscense and a SSN card for two forms and it's never sent to INS but filed with the employer for 3 years max.

Is it possible for her to work. Could this hurt her.

If she is here and has not left on the K-1 then you file I-130 and I-485 as well as I-765 for her EAD. Yes un-auth work and the overstay should be excused when the AOS is approved. the I-601 should not be needed unless they request you to file one.

Study this guide:

http://www.visajourney.com/forums/index.ph...page=i130guide2

Another valuable resource for China/US immigrations issues is "A Candle for Love" http://candleforlove.com

Nope.

She entered on a K1

Needs to go home and go through the usual options plus a waiver for illegal presence.

Job issue does not matter, I9 requires you to confirm that you are authorised to work, she is not.

YouAndDan is correct she is not an EWI so you can file 485/130/765 from everything I have read. Check out http://immigrate2us.net/forum/ also. Kitkat here is very knowledgable also.

Correct, the K-1 entered the country legally, just failed to marry the original petitioner, and overstayed, the OP will just become the K-1's new petitioner by filing the I-130 and I-485 together.

This subject comes up from time to time.

She can't adjust based on the original K-1. But she did enter legally. Since she's married you now, you can file an I-130 and the AOS package to adjust based on her NEW status. An overstay and unauthorized work should be forgiven. She should *not* go home.

She would be adjusting status based on the concurrently filed I-130 (I-485 part 2 check box "a" an immigrant petition giving me an immediately available immigrant visa number has been approved.)

EWI is not the one and only reason for not being eligible to adjust status in the country.

She violated the terms of her K1 visa. Failing to marry the original petitioner isn't a small thing - she now has a visa inadmissibility. She is not allowed to stay in the US or work. She CANNOT adjust her status in the US.

The OP has to start by going through the spousal visa process, she has to return to her country where her visa will be denied due to the K1 violation and she will have to go through the 601 waiver process.

OP consult with a qualified immigration attorney regarding your concerns about the work issues - this may or may not have to be addressed in her 601 waiver.

I'm curious how this would be worse than someone entering the US on a tourist visa, failing to return and then getting married to a US citizen? Is there something specific to a K1 that bans them?

I have read that some visas require a 2 year return to their home country but i have also read there are ways around that even.

Specific to a K1.

You are thinking of a J1 HRR.

Compounded in this case by the long illegal presence.

People can adjust from a tourist visa as long as they can prove that they did not have the intention to marry and stay when they entered the country. It is only ok when it is a spontaneous decision. If they previous planned to marry, they must go through the K1 process - that's why the K1 exists.

The K1 is specific to ONE PERSON. The entire petition process, security checks, police certificates, medical exams, interview, intent to marry, financial support etc. is in reference to ONE PERSON. The USCIS is not exactly a forgiving entity - you cannot just say "well, we went through this entire process but we changed our minds. I stayed in the country (illegally) and found someone else I want to marry". It doesn't work that way.

That's why the OP will have to go home to interview and go through the 601 waiver process.

Kitkat1

Our attorney did mention that we must do an I-601. The reason why we never done this so far is because the large risk involved. My wife has been illegal since 2000. However, we've been married 4 years so far. Our attorney did mention that if she stays in the country for 10 years she can go ahead and file the application for greencard I-485 and then she will have to go to court and argue a hardship. He said this is much less of a risk. The problem is that my wife was talking to our attorney and I'm not too sure what form of legal procedure she is talking about she mentioned he said it was asylum. I though you can only do asyum after a year or so. Do you know what I"m talking about. I'm also curious if she can work. Do a small side job somewhere. she will be doing this illegally of course. But, from what I understand illegal working will be forgiven since she has a US citizen spouse. If caught she can always do voluntary depart and/or since we have a child it will be unlikely they will deport.

I responded via PM but overall NO, there is no 10 year provision to adjust in the country and I cannot see how an asylum claim would be feasible especially after having been illegal for 7+ years - but that's a question for an attorney. NO she cannot work (legally) and YES if they catch her, they can and will deport her - having a child makes no difference. (Watch the news -- people are deported everyday and families are separated everyday). She is at risk of deportation every single day - she has accumulated 7 years of illegal presence which carries a 10 year ban once she leaves the US.

Where are the USCIS rules published for eligability for a I601 waiver?

www.uscis.gov

On Kitkat's response I think there has been some confusion with the Lawyer, perhaps language issues.

There is the possibility that if you ae put into deportation proceedings you might get a sympathetic immigration judge.

It's specific to K-1. It's in INA 245(d)

The Attorney General may not adjust, under subsection (a), the status of a nonimmigrant alien described in section 101(a)(15)(K) except to that of an alien lawfully admitted to the United States on a conditional basis under section 216 as a result of the marriage of the nonimmigrant (or, in the case of a minor child, the parent) to the citizen who filed the petition to accord that alien's nonimmigrant status under section 101(a)(15)(K) .

The 101(a)(15)(K) section is the section that describes the K-1 visa. In plain language INA 245(d), that says that a K-1 alien cannot adjust status except as a result of a marriage to the original petitioner.

Thanks Lucyrich - it's very helpful to have the actual law cited.

And everyone else should avoid posting answers to questions when they clearly do not have the correct answer. There is WAY too much misinformation in this thread alone that could have had disasterous results for the OP.

thank you I agree quotes from the actual law is the best

Many people on this board have difficulties with basic English, quoting the actual law is unlikely to help.

Yup, apologies.

Hi there,
Your wife should not leave the country!!!!! If she entered with inspection (which it appears that she did) she can adjust her status right here. If she does leave, she is subject to the 10 year ban. If, infact she would have to file a 601 waiver, she can do that in country here as well. Check out the forum for adjustment of status on Immigrate2us.net.
Good luck,
Chris

Again, she is NOT eligible to AOS in country. Although her entry was legal, she did not comply with the requirements of the K1 which - one of which to marry the petitioner. Her only option is to go through the spousal visa process with her current husband, interview in her home country and have her waiver approved.