K1 Visa, got married but marriage failed before AOS

[Kloe36 0]

I hope someone can bring some positive news about this. I am dating a man who came to the US from Germany with a K1 Visa. He married his fiance within the allotted time frame; but his marriage soon began to fall apart. For whatever reason he never applied for his AOS. He and his wife are not on speaking terms. From what I gather she has some emotional and mental issues that caused the marriage to fail and is just mean to him now. They are still legally married but he has been here for over 4 yrs without applying for AOS. He has a SS#, DL, files income taxes, running his own small business, he has no debt because he never applied for credit. He has never had any legal issues. What course of action should he take now? Is there any way he can stay in the US without his wife petitioning for him? Thank you in advance.

[C-ma'am 684]

**Moved from K1 to Effects of Major Family Changes on Immigration Benefits; as the post is better suited for this other part of the forum.

[islandgal 74]

Oh dear. He's basically in the country illegally, but doing everything that a USC or resident does - working, paying taxes, etc. Why didn't he still AOS 4 years ago? I believe he's still able to, even if he divorces his wife. He should research VAWA....maybe it's applicable? Not sure about now though...

[kzielu 1,149]

I hope someone can bring some positive news about this. I am dating a man who came to the US from Germany with a K1 Visa. He married his fiance within the allotted time frame; but his marriage soon began to fall apart. For whatever reason he never applied for his AOS. He and his wife are not on speaking terms. From what I gather she has some emotional and mental issues that caused the marriage to fail and is just mean to him now. They are still legally married but he has been here for over 4 yrs without applying for AOS. He has a SS#, DL, files income taxes, running his own small business, he has no debt because he never applied for credit. He has never had any legal issues. What course of action should he take now? Is there any way he can stay in the US without his wife petitioning for him? Thank you in advance.

No - he can't. He can only adjust status based on marriage to his petitioner. Only way is to , divorce, leave, re-marry, get petitioned again and apply for waiver to waive 10-year ban he will get once he leaves US.

If he by any chance ever said anywhere he is a US citizen (doubt he will be able to hold DL for so long being out of status), then he will never be able to become legal and never be admissable to US again if he leaves.

[islandgal 74]

He cannot apply for AOS on his own. And he has to file for AOS within required time after the entry of K1 visa. When he applies for his AOS within 90 das (should be 90 days but not so sure)after K1 entry, he has to get his wife (the petitioner) to sign the forms along the application. Obviously it's too late to discuss those issues now.

Okay. I thought he could have back then if his situation qualified under VAWA. I do agree that he'll need an attorney at this point in time.

This is a very complicated situation.

[Caryh 5,206]

To add to over staying his visa for 4 years, he is working in the USA without adjusting status and having a valid work permit, so he is violating another law. I wouldn't even bother with advice from this forum. This guy is well beyond any self help that can be done here. He needs an immigration lawyer and a damn good one. As to his wife having "some emotional and mental issues", I doubt there are many divorced men that don't feel the same about their ex. Probably most divorced women feel the same about their ex's to. BTW having a drivers license, SS number, and paying your taxes does not mean he's working in this country legally. The IRS will take your tax money if you're legal or not. Failure to pay them just adds more trouble to your list. It might be much better for him if USCIS never finds out he's running a business and working without legal authorization to do so.

[Harsh_77 718]

AOS is not same as Removing the Condition.

AOS has to be filled by the spouse... if the marriage failed before the AOS he is required to leave the country and return back.

It is surprising he has valid lic and SSN without AOS...does not add up... but could be his state issued the DL but SSN without AOS is not possible.

There are somethings that just does not add up, he needs a lawyer as mentioned earlier.

[Kloe36 0]

Thank you all for your thoughts and suggestions. I wish I had an answer as to why he did not do the AOS when he should have but I don't. The reason I stated he had his DL, SS#, etc was just trying to show some good faith on his part. I know what most of you are thinking and yes you are correct...the AOS should have been his priority. I did not know him 4 yrs ago and am kind of on the outside looking in with all of this. He did go to an attorney for advice and he pretty much confirmed what all of you are saying. Its just a tough pill to swallow so I was trying to do research on my end. It is hard to believe that it is that black and white. Although he is breaking the law with the AOS, he apparently thought it was just a formality and doesn't want to be here illegally so I am not sure what he is going to do. Again, thank you for your time.

[Xanax 349]

He cannot apply for AOS on his own. And he has to file for AOS within required time after the entry of K1 visa. When he applies for his AOS within 90 das (should be 90 days but not so sure)after K1 entry, he has to get his wife (the petitioner) to sign the forms along the application. Obviously it's too late to discuss those issues now.

Just to correct you, you don't have to file AOS within any timeframe. You only have to MARRY within 90 days

[Villanelle 4,122]

AOS is not same as Removing the Condition.

AOS has to be filled by the spouse... if the marriage failed before the AOS he is required to leave the country and return back.

It is surprising he has valid lic and SSN without AOS...does not add up... but could be his state issued the DL but SSN without AOS is not possible.

There are somethings that just does not add up, he needs a lawyer as mentioned earlier.

This is not true. K1 visa holders can get SS numbers.

The problem with the OPs boyfriends situation (which there are many) but the main problem would be his lack of work authorization documents (EAD).

The post above is correct, when someone comes on a K1 the only requirement is that they marry in 90 days. They can file for AOS whenever they want, but when the K1 expires until they do they are with out status. They can obtain a SS number and in some states even a DL, but to work legally they need an EAD card and to get one you need to file for AOS.

Since he did not do so, he has been working illegally and really needs to stop before he is caught and prosecuted. If he has been working illegally by claiming to be a citizen- hes pretty much done when it comes to immigration matters if caught.

[Boiler 45,670]

To be fair he is hardly alone in thinking such things are a formality.

[KayDeeCee 4,893]

First, someone that enters with a K-1 is eligible for an SSN right away. You do not have to adjust status first to get an SSN.

Second, there is no deadline to file for AOS. You must marry the petitioner within 90 days of entry to fulfill the terms of the K-1 visa and be eligible to file for adjustment. Once the I-94 expires, then they are out of status until they file for AOS. AOS is not filed by the spouse either. The only form that is filled out by the spouse is the I-864 affidavit of support. Without the I-864 from the USC petitioner/sponsor, they cannot adjust status. Also, if called for an interview, both must attend together and prove the marriage is real and valid. It is the only way to be granted permanent residency.

You are not authorized to work with just an SSN. You must also have an EAD(employment authorization document) or a green card. He has been accruing illegal presence for 4 years as well as working illegally.

He needs to find a really good immigration attorney. Not just any lawyer, but one that specializes in immigration and has a reputation for solving/winning complicated cases. See what the attorney tells him. This is beyond the powers of DIY.

[bigdog 376]

I agree a real top notch immigration attorney is the call.

[Justine+David 218]

If he can save the marriage, then they can file AOS right now along with an I-130. He cannot adjust status through anyone but through her because he came on a K1 petition. If he leaves the country, he will have a 10 year ban on him for the overstay, that is, if USCIS won't deport him first.

[mishka1 17]

To add simple correction, the SS# that issued without the EAD card is marked “Valid For Work Only with DHS Authorization” which is the EAD. And I agree that the petitioner spouse does not have to sign the AOS petition, it is only to submit and sign I-864 Affidavit of Support with income over the poverty limit. So working with marked SS# as stated in the first line is illegal.