Help please - married on K1, but need to leave before AOS

[sativo 3]

Hi,

 

My fiancee and I got married within the 90-day K1 visa period, however we have yet to start the AOS process.

 

We were married in about 60 days, and she has overstayed the visa by about 3 months now.

 

We have been trying to get her daughter's immunization shots finalized before submitting for the AOS and this is why we haven't done it yet.

 

The problem now is that my wife and her daughter need to return to their country due to a family matter -- I will accompany them.

 

Since she has not yet received her early parole / work permit, I understand this means she will not be able to re-enter via the K1 visa. However, since we are married, can we cancel the K1 visa process and start an IR1 or CR1 visa in the future given that she has already overstayed her K1 visa?

 

If this is possible, what are the chances it will be approved? Is it possible she we be denied on the IR1 or CR1 given her overstay of the K1?

 

Thank you,

Sativo

Edited July 6, 2017 by sativo

[s + j 71]

Can't cancel the K-1 as it's already used. CR1 will be your next step yes. 

 

Are you sure you cant wait for AP & EAD to leave the country? Will obviously be cheaper that way. 

 

And she might have a ban to overcome considering her overstay

[Hypnos 6,576]

No bar provided the overstay (counting from the date on the I-94 until the day you leave) is under 180 days.

Edited July 6, 2017 by Hypnos

[sativo 3]

17 minutes ago, Hypnos said:

No bar provided the overstay (counting from the date on the I-94 until the day you leave) is under 180 days.

She is at 175 days today. Is there any way to do a speedy petition to allow her a little more time before leaving? Flying out in 4 days will be a challenge.

[Hypnos 6,576]

No, but she doesn't have to be here for you to file.

 

Once she hits 180 days that's a three year bar. She'd be denied at the interview for her CR-1 due to the overstay and would then need to try an I-601 waiver, which would add ~6-12 months to what will already be a ~1 year process.

 

If it can be avoided, she should remain in the US and you should file for AoS instead.

[Ontarkie 13,918]

If at all possible get the AOS filed asap. You can always try to get emergency AP for them once you get the NOA1  

Edited July 6, 2017 by Ontarkie

[Boiler 43,543]

Does the 175 include the 90 on her K1 entry?

[Coco8 1,039]

For IR-1 you are looking to a 12-14 month process, adding the waiver for the overstay it will be 6+ months. So overall you are looking at 2 years. 

 

I understand you have a family emergency, but 2+ years can create other sort of emergencies or complications.

 

 

[sativo 3]

4 minutes ago, Boiler said:

Does the 175 include the 90 on her K1 entry?

Yes, it's the entire time from the date of entry to today.

[papasmf 90]

If you can afford to wait at all on the trip, I agree with others who suggested getting in AOS in asap and do the emergency AP, contact congressman for help to speed up emergency AP if possible.  Sorry you are dealing with this problem.  Here is some information about emergency AP:

 

https://www.uscis.gov/green-card/green-card-processes-and-procedures/travel-documents/emergency-travel

 

Good luck and God bless you all

[sativo 3]

16 minutes ago, papasmf said:

If you can afford to wait at all on the trip, I agree with others who suggested getting in AOS in asap and do the emergency AP, contact congressman for help to speed up emergency AP if possible.  Sorry you are dealing with this problem.  Here is some information about emergency AP:

 

https://www.uscis.gov/green-card/green-card-processes-and-procedures/travel-documents/emergency-travel

 

Good luck and God bless you all

Thanks for the information -- very helpful.

 

We are trying to arrange things so she can stay to do the AOS.

 

We still have not treated her daughter with all of her immunization shots. Doctor says the final shot must be given in about a year.

 

Can we file AOS before having all her shots?

[Boiler 43,543]

She had her Medical etc to get a K2.

[Sunnyland 639]

If there is a family problem, can you not go and see if you can help her family? Instead of your wife travelling without her AP. She is already here and as soon as you file for AOS, you can request an emergency parole perhaps. Unfortunately there is a limo time between marrying on K1 visa and between filing for AOS. That is why always recommended filing for AOS as soon as possible.

I really hope you can solve this problem and your wife can stay in US with you.

[Georgia16 2,858]

5 hours ago, sativo said:

Thanks for the information -- very helpful.

 

We are trying to arrange things so she can stay to do the AOS.

 

We still have not treated her daughter with all of her immunization shots. Doctor says the final shot must be given in about a year.

 

Can we file AOS before having all her shots?

You got your answer on this one in your other thread. Yes.

[sweetadams 138]

1 hour ago, Sunnyland said:

If there is a family problem, can you not go and see if you can help her family? Instead of your wife travelling without her AP. She is already here and as soon as you file for AOS, you can request an emergency parole perhaps. Unfortunately there is a limo time between marrying on K1 visa and between filing for AOS. That is why always recommended filing for AOS as soon as possible.

I really hope you can solve this problem and your wife can stay in US with you.

You have a valid point, if the family emergency has occurred, he can go over there and represent, I believe her family will understand the importance of her new family. I will also suggest you video chat from there if she can't make it, Internet might be crappy (no offend to the country) but at least the world is a global village now.