K1 to AOS right away??? Please advise

[Kesslemh 0]

Hello VJ community, first I'd like to thank you all for this wonderful and super helpful community. Thanks to this site all went well with our K1 Visa.

Unfortunately due to unforeseen circumstances we will only have enough time to get married and almost immediately after she will need to return due to some family issues that need to be taken care of.

Now unto the question: do we have to file for AOS right away with a K1 or can she leave the country after getting married and later under a different visa such as a B1/B2 tourist visa do an AOS? She already has a B1/B2 visa. Or would I need to start a K3 visa at this point? Or maybe there are other options I'm not aware of. Any help and advice would be greatly appreciated!

Thanks

[Ben&Sara 3]

I believe she would have to apply for advance parole to leave while still petitioning, which could take months.

Also, if she were to enter again on a visitors visa trying to adjust status that would be visa fraud I believe.

Unfortunately, she might just have to sit through the process until she gets a green card. But don't quote me on this, this is just my understanding

[NigeriaorBust 4,087]

Her visitors visa would be cancelled when she gets her K!, she has to apply for AOS and get advanced parole to leave and return , she could try an emergency stamp if it was really an emergency but it is not a given.

[Pitaya 2,576]

Welcome to the forum.

easily accessible at the top of the forum page. In particular. After Filing; What Happens? in the K1/K3 AOS Guide: http://www.visajourney.com/content/k1k3aos. Be sure to read the section about Emergency Advance Parole, to see if she could qualify.

As mentioned if the alien spouse leaves before obtaining Advance Parole or AOS adjudication, USCIS can consider the I-485 "abandoned" and will require a new visa (spousal) and a new I-485 to be filed. A B1/B2 tourist visa is for visiting the US, not Immigration. To attempt to use a tourist visa with immigration intent could be considered visa fraud and will likely cause more immigration problems. This practice is not recommended.

You have options, follow the legitimate path.

Good luck on your immigration journey.

[Kesslemh 0]

Ah! Thanks! I don't think this would qualify as a dire emergency. So b1/b2 is out of the question. If she leaves our only option then would be a CR1 or K3 visa. Sound about right?

[Pitaya 2,576]

Look at CR1 spouse visa process. K3 visa process tends to be administratively closed by USCIS, if memory serves me correctly.

http://www.visajourney.com/content/i130guide1

Edited November 24, 2015 by Pitaya

[EricAndOrn 30]

According to Foreign Affairs Manual:

9 FAM 502.7-5( C )( 7 )( e )

https://fam.state.gov/FAM/09FAM/09FAM050207.html

e. Reissuance of K-1 Visa: If a K-1 visa, valid for a single entry and a 6-month period, has already been used for admission into the United States and the alien fiancé(e) has returned abroad prior to the marriage, you may issue a new K visa, provided that the period of validity does not exceed the 90th day after the date of initial admission of the alien on the original K visa, provided the alien fiancé(e) pays a new application processing fee, and provided also that the petitioner and beneficiary still intend and are free to marry. The alien’s return to the United States and marriage to the petitioner must take place within 90 days from the date of the original admission into the United States in K status.

Not sure what your time frame is, but perhaps this is an option not to marry and return to marry in time. Be sure to verify this independently on your own.

According to this you can leave the US before getting married and get a new visa issued, but the marriage clock is still ticking and you must get married within 90 days of your first entry into the US on the K-1 Visa.

Edited November 30, 2015 by EricAndOrn

[Anh map 2,098]

How much time away is needed? Perhaps the K1 visa could be extended if she just needs several weeks or so to take care of the matter. Then she could enter, marry, adjust status.