K1 recipient leaving before filing for AOS after marriage and without advance parole

[erik123 0]

OK, here's the hypothetical. Foreign fiance(e) comes to the US on K1 visa with kids (they enter with K3) and marries the US citizen petitioner within 90 days. After the marriage, and before filing for AOS, the new (foreign) spouse and kids have to return to their home country due to a family emergency. Advance parole is not filed for or obtained. Once the new spouse/kids are back in their home country, is it correct to say that their only option to return to live in the US is to obtain new visas (i.e. K3 for the spouse and K4 for the kids)?

AOS can only be filed for while within the US, right? So it wouldn't make a difference that the spouse technically didn't "abandon" the application for AOS since AOS hadn't been filed for--is that correct? In other words, since AOS can't be applied for if the new (foreign) spouse has left the US, he or she is still stuck in the home country until a new visa can be obtained. Are there any exceptions that would allow AOS to be filed for while the new spouse is outside the US, or has he or she completely screwed everything up by leaving the US and must now obtain a whole new visa?

Thanks.

[Bobby+Umit 161]

Yes, they would need a new visa (K-1 is a one shot deal). K-3's are multi-use till they expire.

No exceptions that I know of, since you actually have to be in the US to adjust status.

With that said - if you file for the AOS, you will also apply for the AP (I-131) which will allow the person to travel before the AOS is completed.

And if you have the NOA for the AOS, and if you didn't get the AP yet/for any reason, you can still go to the USCIS and request an emergency AP.

Best thing to do, don't leave till you have the AP or GC.

(and you don't have 180+ overstay, even with the AP, you will get a ban coming back to the US)

[Nik+Heather 122]

I have an alternate ending to propose:

OK, here's the hypothetical. Foreign fiance(e) comes to the US on K1 visa with kids (they enter with K3) and marries the US citizen petitioner within 90 days. After the marriage,

They file for AOS as soon as the marriage certificate is in their hands.

When the emergency arises, they visit their local office to get an emergency AP, and they leave to take care of business. When things are taken care of, they return to resume their AOS efforts.

Good job pointing out a VERY good reason to apply for AOS (even if it most people do not have issues doing it late) as soon as possible. Unexpected circumstances can arise!!!

Another poster has a thread going about possibly missing their interview, and has made an informed though purely financial decision to try to postpone the interview, possibly leading to a denial of AOS. That is another prime example of how each situation is different. Some people would spend any amount of money to not spend time apart. Some people are willing to risk spending more time apart to save money. Sometimes your emergency situation is more important than having to re-do everything (what if it happened before marriage even!). Everyone has their price, as they say.

Edited June 18, 2009 by Nik+Heather

[Gary and Alla 3,694]

OK, here's the hypothetical. Foreign fiance(e) comes to the US on K1 visa with kids (they enter with K3) and marries the US citizen petitioner within 90 days. After the marriage, and before filing for AOS, the new (foreign) spouse and kids have to return to their home country due to a family emergency. Advance parole is not filed for or obtained. Once the new spouse/kids are back in their home country, is it correct to say that their only option to return to live in the US is to obtain new visas (i.e. K3 for the spouse and K4 for the kids)?

AOS can only be filed for while within the US, right? So it wouldn't make a difference that the spouse technically didn't "abandon" the application for AOS since AOS hadn't been filed for--is that correct? In other words, since AOS can't be applied for if the new (foreign) spouse has left the US, he or she is still stuck in the home country until a new visa can be obtained. Are there any exceptions that would allow AOS to be filed for while the new spouse is outside the US, or has he or she completely screwed everything up by leaving the US and must now obtain a whole new visa?

Thanks.

A K-1s children enter on a K-2, not a K-3, just for clarification.

You would file an I-130 for them to return, this could be the K-3 or the CR-1. But why wouldn't you make an infopass appointment at your local office and apply for an emergency AP? I checked on this at our local office before Alla arrived, I was concerned about this as her mother is not in the best of health and one never knows. Anyway, they told me to make an appointment or "walk-in" if needed, explain the situation, file for an emergency AP, they would likely grant it and if necessary send the document to Kiev for her to pick up before returning. They seemed to be fairly cooperative for a family EMERGENCY in the beneficiaries HOME country. Their exact words were "If that happens, get in here, apply and GO!"

That said, you can FILE for the AOS while the spouse is out of the country but she must return to COMPLETE the process, which is exactly what the AP "requests" The AP is a "request" for permission to re-enter to complete adjustment of status (when applied for by a K-1)

If she left without applying for the AP or AOS I do not think the terms of the visa were met and you are stuck with filing an I-130

[Bobby+Umit 161]

Forgot -

If you do file for the AOS, and haven't received/applied for/ the AP, and the person(intending immigrant) leaves the US without permission, the AOS is abandoned, and you just lost any money spent for it.