Expired K-1 visa

[atownsen 0]

My fiance and I were separated and canceled our wedding plans.

Her K-1 visa expired in the beginning of April.

We are now back together.

Can we do anything so that she can still be here legally? Yes, she is still here in the states with me.

We want to get married as soon as possible.

Edited June 20, 2010 by atownsen

[JimVaPhuong 4,863]

My fiance and I were separated and canceled our wedding plans.

Her K-1 visa expired in the beginning of April.

We are now back together.

Can we do anything so that she can still be here legally?

We want to get married as soon as possible.

Some consulates have been known to reissue a K1 visa after the previous one has expired. I read one case where the consulate in Vancouver did this, but the beneficiary had to essentially repeat the packet 4 process, which means resubmit all of the same documents, pay the same fees, and repeat the medical exam. This was someone whose visa had only expired by a few days when they returned to the consulate to see what could be done. I think the odds of a consulate doing this after the visa has been expired for a couple of months are pretty remote.

I've read other cases where the beneficiary returned to the consulate after the visa expired, explained why they did not or could not use the visa before it expired, and the consulate stamped the visa "Canceled without prejudice", and told the beneficiary they could reapply starting with a new petition.

If you do decide to contact the consulate to see if there's any chance of resurrecting the old visa, I'd be very careful about telling them the visa wasn't used because you'd temporarily split up. That bit of information is not going to make the consulate feel very good about the relationship.

[Audy_Rob 26]

No matter what, it is a sensitive matter. The most likely path is you will need to re-file the petition and reapply for the K-1 Visa. Since this will be a new I-129F filed within two years (I am assuming two years) of your previously approved petition, you will need to submit a waiver which is nothing more than a piece of additional paper with an explanation of events.

And of course if the matter of the first Visa not being used is raised at the subsequent Visa interview, you need to be fully honest in all information and answers provided. I am very carefully avoiding the use of the word "complete" in answers or explanations.

Good luck.

[pushbrk 12,103]

No matter what, it is a sensitive matter. The most likely path is you will need to re-file the petition and reapply for the K-1 Visa. Since this will be a new I-129F filed within two years (I am assuming two years) of your previously approved petition, you will need to submit a waiver which is nothing more than a piece of additional paper with an explanation of events.

And of course if the matter of the first Visa not being used is raised at the subsequent Visa interview, you need to be fully honest in all information and answers provided. I am very carefully avoiding the use of the word "complete" in answers or explanations.

Good luck.

She's still here in the USA. They can simply marry and file to adjust her status. Since the marriage occurred after the 90 days allowed, he'll need to file an I-130 concurrent with the adjustment of status filing but there is no need for a new visa.

[payxibka 10,044]

She's still here in the USA. They can simply marry and file to adjust her status. Since the marriage occurred after the 90 days allowed, he'll need to file an I-130 concurrent with the adjustment of status filing but there is no need for a new visa.

This is the path to immigration for the OP that allows the status to be corrected WITHOUT leaving the USA...

[engineer21 51]

She's still here in the USA. They can simply marry and file to adjust her status. Since the marriage occurred after the 90 days allowed, he'll need to file an I-130 concurrent with the adjustment of status filing but there is no need for a new visa.

I agree. If she is here, you should go ahead get married and then file i-130 & i-485 concurrently.

Don't think there should be any problems because she entered legally on an immigrant visa.

[pushbrk 12,103]

I agree. If she is here, you should go ahead get married and then file i-130 & i-485 concurrently.

Don't think there should be any problems because she entered legally on an immigrant visa.

K1 is a non-immigrant visa but the path indicated is appropriate because she entered legally on any visa.

[payxibka 10,044]

Don't think there should be any problems because she entered legally on an immigrant visa.

Semantics only, but if she entered on an immigrant visa she would not have a "status" problem.

[JimVaPhuong 4,863]

She's still here in the USA. They can simply marry and file to adjust her status. Since the marriage occurred after the 90 days allowed, he'll need to file an I-130 concurrent with the adjustment of status filing but there is no need for a new visa.

Did I miss that, or did he add that after I replied?

[payxibka 10,044]

Did I miss that, or did he add that after I replied?

OP's first post:

Yes, she is still here in the states with me.

[JimVaPhuong 4,863]

OP's first post:

Yes, I saw it this morning, but I don't remember seeing it last night. It was a long day, and I was tired, so I probably just missed it.

[payxibka 10,044]

Yes, I saw it this morning, but I don't remember seeing it last night. It was a long day, and I was tired, so I probably just missed it.

Yeah, maybe... his post edited at 10:03 and your post time stamped at 10:15

[Audy_Rob 26]

So there is no penalty, no down side to marrying after the 90 day limit? Surely this cannot be viewed the same as marrying within the 90 day limit.

[payxibka 10,044]

So there is no penalty, no down side to marrying after the 90 day limit? Surely this cannot be viewed the same as marrying within the 90 day limit.

the first downside is that you cannot adjust directly from K-1, as you are required to submit an I-130 for determination of eligibility as an immediate relative. The second downside is that this can only happen if the alien married the K-1 petitioner. If they married a different USC, then they cannot adjust and must leave and do consular processing.

Edited June 21, 2010 by payxibka

[engineer21 51]

Semantics only, but if she entered on an immigrant visa she would not have a "status" problem.

sorry, I don't know the technical term . I just meant that because she entered on K-1, they won't question her intent to immigrate/get married.