K1 Fiance over stayed

[Lucky couple 1]

Hello Every one! I am putting this question for my friend who came to the US on K1 Visa.

My friend came to the US on a K1 visa to marry her Fiance within 90 days,but somehow they were not able to get married quicky as they had hoped. My friend then stayed back in the country for about 2 years illegally. and she only just married THE (same) Fiance just few months ago. Now they hope to file for her Adjustment of Status to permanent Resident. My friend is very very worried that this process may only point the immigration to her and get her in trouble. Does anyone know what would happen if my friend Filed for AOS? Is she gonna get into lots of trouble for waiting so long?

[Kathryn41 3,207]

While it isn't ideal and your friend has a substantial overstay, she did enter the country legally on the K-1 visa. She didn't fulfill the requirement of the K-1 visa by getting married within 90 days but she did fulfill the requirement of the K-1 by marrying the person who petitioned for her, so she is allowed to apply for a Green card. If she had married anyone else at all she would not be allowed to apply for a green card and would have to leave the US.

Your friend's husband needs to file the I-130 form and she needs to file the I-485 and send them in together. The I-130 is a petition for a family member - which she is - of a US citizen to be allowed to apply to adjust status. She is no longer able to apply under the K-1 status since that expired with her I-94 so that is why the I-130 is required.

There does not appear to be anything that will prevent her from adjusting status since she did marry her original petitioner and she hasn't left the country since her arrival. She should definitely not leave the country now until she gets her green card approved. There is no point in her applying for an AP (I-131) travel document as she cannot use it. While she is currently out of status, once she applies for the AOS she will again have legal status in the US which will continue until she receives a decision about her green card. When her green card is approved any overstays or unauthorized work will be forgiven.

She will likely be called in for an interview and it is probable immigration will ask her why she waited so long to get married. She and her husband should be prepared to address questions like this (honestly, of course). They should make sure they send more, rather than less, evidence that documents the validity of their marriage with their application.

Edited May 9, 2010 by Kathryn41

[VanessaTony 3,567]

Also, she should be aware that she will need to have a full and complete new medical using a designated civil surgeon (here's the locator: https://egov.uscis.gov/crisgwi/go?action=offices.type&OfficeLocator.office_type=CIV ) as her K1 medical was only valid for a year.

She should also NOT leave the country until she has the greencard in her possession. She can apply for the EAD (work permit - I-765) but she should not apply for the AP (travel document - I-131).

Best of luck to your friend