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diamondblade

Options for temporarily remaining in U.S. after K1 marriage without filing AOS

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The situation right now: the K1 petition has been approved, and packet 3 has been sent to the Sydney consulate. Interview date is pending.

However, it's looking increasingly likely that my fiance will be offered a dream job in Australia very soon, with a start date of February or March 2009.

We still have every intention of his entering the U.S. and getting married, but if he gets this job, I would migrate to Australia with him, instead of his coming to the U.S. to live and work.

With the assumption that he will get the job in Australia, what is the proper procedure for him to enter the U.S. and stay 6-8 months without working or necessarily becoming a permanent resident? I've seen people on the forums mention that, "there's no timeline as to when you must submit your AOS" - does this mean that my fiance could potentially enter the U.S. on the K1, NOT adjust status, and then leave permanently? Or is the 90-day validity of the K1 regardless of whether or not you marry within that time?

Some other thoughts/ideas I've had:

- I've thought of perhaps applying for a tourist visa after he enters, but with the K1 in progress, we have established intent to marry. Would that be grounds for denial of a tourist visa?

- Should we drop the K1 altogether, attempt to have him enter the U.S. on a tourist visa, marry and stay 6 months, and leave? Would that be legal/feasible at this point?

- The only other option I can see is to go ahead and file the AOS - but it seems like a big hassle and a waste of money and USCIS's time to file for permanent residency when (again, assuming we would be going to live and work in Australia) we know the "permanent residency" will be invalidated by the fact that, well, he wouldn't be residing in the U.S. (It could also potentially be fraudulent, no?)

I apologize if this has been answered somewhere else - I've tried searching the forums and looking through the site's nooks and crannies, but haven't turned up anything that pertains to this potential situation. I'm just a little lost! Any help or relation of similar experiences would be helpful. I never expected to get this far in the process and then "change my mind" about it!

Edited by diamondblade

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Actually, ignore the bit about length of K1 validity. I finally found that information. Only 90 days, marriage or no, only remaining legal if filing AOS. Sorry about that. I'd edit the original post but don't seem to have the button for it anymore. Oh well. :X

As long as you marry within the 90 days, there's no hard rule on how soon you must file for AOS. So, he can just come, marry you and then leave for the new job at the appropriate time. Future visits can be accomplished with the visa waiver program. Should he later wish to immigrate to the USA, you would petition for in immigrant visa directly with a Consulate in Austrailia.

For clarity though the K1 visa's validity is six months, meaning he has six months from visa issue to enter the US. Once the visa is used, it's dead and gone. The I-94 given at entry is good for 90 days. If you don't marry within the 90 days, he must leave the USA. If you do, there is no specific time frame for adjusting status.


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Thanks, pushbrk. So there won't be any repercussions if we just don't file AOS at all? I had thought that the AOS was a requirement of entering on the K1. Forgive my cluelessness!

It is a requirement if you want to get your greencard....


YMMV

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No need to file for AOS but your fiance/spouse will have to depart on or before the I-94 expires. He should not incur any overstays so as not to jeopardize coming in using the VWP or any future visa applications he might have.


08/17/08: Mailed N400 to TSC

08/19/08: USPS attempted delivery

08/20/08: TSC received N400

08/21/08: TSC cashed check

09/02/08: Received NOA...........Priority date: 08/20/08

..............................................Notice date : 08/22/08

09/02/08: Received Biometrics Notification

09/18/08: Biometrics completed - Charlotte DO

10/24/08: Received Interview Letter

12/08/08: Interview @ 1:00pm. APPROVED!

01/05/09: Oath Ceremony 10:00AM. Now officially a USC!!!

-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-

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01/28/09: Received US Passport

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No need to file for AOS but your fiance/spouse will have to depart on or before the I-94 expires. He should not incur any overstays so as not to jeopardize coming in using the VWP or any future visa applications he might have.

No, a K1 visa holder doesn't have to depart before the I-94 expires. They just have to get married, in the USA, to the petitioner before the I-94 expires. AOS is to adjust status to permanent resident. Since the OP's fiance doesn't intend to become a permanent resident, they can stick around a few months before they have to leave. I'd limit the stay to no more than 180 days past the I-94 expiration though, just to be on the safe side.

Edited by pushbrk

Facts are cheap...knowing how to use them is precious...
Understanding the big picture is priceless. Anonymous

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A Warning to Green Card Holders About Voting

http://www.visajourney.com/forums/topic/606646-a-warning-to-green-card-holders-about-voting/

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I just want to be sure, is all. The VJWiki page on K1 (http://www.visajourney.com/wiki/index.php/K-1_Visa) says: "If your fiancé(e) intends to live and work permanently in the United States, your fiancé(e) should apply to become a permanent resident after your marriage. (If your fiancé(e) does not intend to become a permanent resident after your marriage, your fiancé(e)/new spouse must leave the country within the 90-day original nonimmigrant admission.)" This is the only reference I've been able to find, though. Maybe it's outlined somewhere on the uscis.gov site, but I can't find it.

And to clarify, fwaguy, for this situation, we would -not- want a greencard, as we would be moving to Australia within 6-8 months, so it would be ideal not to pay the fees and do the paperwork for the AOS if it's not necessary.

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I just want to be sure, is all. The VJWiki page on K1 (http://www.visajourney.com/wiki/index.php/K-1_Visa) says: "If your fiancé(e) intends to live and work permanently in the United States, your fiancé(e) should apply to become a permanent resident after your marriage. (If your fiancé(e) does not intend to become a permanent resident after your marriage, your fiancé(e)/new spouse must leave the country within the 90-day original nonimmigrant admission.)" This is the only reference I've been able to find, though. Maybe it's outlined somewhere on the uscis.gov site, but I can't find it.

And to clarify, fwaguy, for this situation, we would -not- want a greencard, as we would be moving to Australia within 6-8 months, so it would be ideal not to pay the fees and do the paperwork for the AOS if it's not necessary.

There in fact, is no specific time frame during which he must apply for permanent residency. You are well within your rights to delay that action until you can, for instance, "affoird it" or "find out about a job offer overseas" or "until you're darn good and ready". I'm not aware of any penalties for unauthorized presence under 180 days.

There's must and then there's "what's the penalty?" Perhaps you would be more comfortable consulting an immigration attorney.


Facts are cheap...knowing how to use them is precious...
Understanding the big picture is priceless. Anonymous

Google Who is Pushbrk?

A Warning to Green Card Holders About Voting

http://www.visajourney.com/forums/topic/606646-a-warning-to-green-card-holders-about-voting/

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Pushbrk is usually right (only about 100%). But I do have another option, cancel the K1, he can come her on VWP, get married and then go back. How sure is he of getting that job? If not much, then go ahead get the K1 and don't worry about the AOS. Good Luck


2005

K1

March 2 Filed I-129 F

July 21 Interview in Bogota ** Approved ** Very Easy!

AOS

Oct 19 Mailed AOS Packet to Chicago

2006

Feb 17 AOS interview in Denver. Biometrics also done today! (Interviewing officer ordered them.)

Apr 25 Green card received

2008

Removal of conditions

March 17 Refiled using new I-751 form

April 16 Biometrics done

July 10 Green card production ordered

2009

Citizenship

Jan 20 filed N400

Feb 04 NOA date

Feb 24 Biometrics

May 5 Interview - Centennial (Denver, Colorado) Passed

June 10 Oath Ceremony - Teikyo Loretto Heights, Denver, Colorado

July 7 Received Passport in 3 weeks

Shredded all immigration papers Have scanned images

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