K1 visa, not married within 90 days, overstay?

[Ryan S 4]

My fiance is here in the US on a K1 Fiance Visa and we haven't married yet. We're not sure about getting married. We have until June 19 to decide before the 90 days is up. If she overstays, can she come back to the US later with a tourist visa as a citizen of Spain? If not, can she come back as a tourist if she leaves before the 90 days are up? And final question, is it very difficult to try for an adjustment of her status if we get married here after the 90 days?

[belinda63 2,981]

If she overstays she will have a difficult time obtaining a tourist visa, but if she can show strong ties to her home country, it may not be impossible. If you marry after the 90 days, you will have to concurrently file the I130 and I485 as she would no longer be eligible to adjust based on the K-1 visa.

The big question about her obtaining a tourist visa if she leaves would be her ability to show strong ties to her home that would outway her having a boyfriend in the US with her already showing immigrant intent. No one can answer if she will be granted one or not.

[ppihtr123 68]

If she overstays there will be an automatic ban on entering the US for a period determined by her length of overstay so a visitor visa is unlikely.

If she leaves before the 90 days, she is always able to apply for a visitor visa but approval is dependent on her showing strong ties to Spain.

Overstays are usually forgiven for spouses BUT if she overstays, she is out of status until you get married and file for AOS. During that time if she leaves the US, automatic ban. If she is deported, automatic ban.

Given this, I would recommend ether get married and file for AOS before 6/19 OR she go home before 6/19.

[Ryan S 4]

Thanks, would you say her chances of coming back as a tourist would be improved if she leaves before the 90 days are up as opposed to overstaying and then trying to come back?

If she overstays she will have a difficult time obtaining a tourist visa, but if she can show strong ties to her home country, it may not be impossible. If you marry after the 90 days, you will have to concurrently file the I130 and I485 as she would no longer be eligible to adjust based on the K-1 visa.

The big question about her obtaining a tourist visa if she leaves would be her ability to show strong ties to her home that would outway her having a boyfriend in the US with her already showing immigrant intent. No one can answer if she will be granted one or not.

[skiptex 225]

Thanks, would you say her chances of coming back as a tourist would be improved if she leaves before the 90 days are up as opposed to overstaying and then trying to come back?

well.. did she have a tourist visa in the passport before K1.. they invalidated rossana's when she entered into usa..

not sure about spain..

but yes.. it would be better she leaves.. in that case..

DO NOT OVERSTAY

[Ryan S 4]

She is actually waiting for her Spanish citizenship to arrive in the mail at her apartment in Spain. She's just a resident there now so she did not have a tourist visa. Not sure if that makes a difference. What do you think the consequences will be if the overstays and then goes back to Spain to get her citizenship and come back as a tourist?

well.. did she have a tourist visa in the passport before K1.. they invalidated rossana's when she entered into usa..

not sure about spain..

but yes.. it would be better she leaves.. in that case..

DO NOT OVERSTAY

[Ryan S 4]

Thanks for the info, these are currently the only two options we are really considering, I was just hoping there would be another option. She has lived in Spain since 2005 and has worked there and lived on her own since she left to come here in March, so hopefully they'll consider that background as a strong tie.

If she overstays there will be an automatic ban on entering the US for a period determined by her length of overstay so a visitor visa is unlikely.

If she leaves before the 90 days, she is always able to apply for a visitor visa but approval is dependent on her showing strong ties to Spain.

Overstays are usually forgiven for spouses BUT if she overstays, she is out of status until you get married and file for AOS. During that time if she leaves the US, automatic ban. If she is deported, automatic ban.

Given this, I would recommend ether get married and file for AOS before 6/19 OR she go home before 6/19.

[skiptex 225]

If ur not getting married then why stay..

The k1 visa is a lot of time and work.. for nothing..

I get it if not sure.. not married is easier to walk away from

But not getting married and having her still come back.. jus baffles my mind..

[ljb73 2]

If ur not getting married then why stay..

The k1 visa is a lot of time and work.. for nothing..

I get it if not sure.. not married is easier to walk away from

But not getting married and having her still come back.. jus baffles my mind..

Agreed. Why why why??? I just don't get it. If you don't get married, you are not going to live together in the US. Period. If you are even asking this question it doesn't seem like your relationship is serious or very important to either of you, because if you don't get married you will be marked for life by USCIS.

[Ryan S 4]

Well I love her but we both just feel like we're rushing into marriage. I understand the advice I've been given in the past that we shouldn't have gone through with this if we weren't sure we'd be getting married, but that's in the past now. I've been able to visit her there many times so we just feel like if she goes back to get her Spanish citizenship, but she could still come back shortly after that on a tourist visa so we can have more time to decide if we want to get married.

If ur not getting married then why stay..
The k1 visa is a lot of time and work.. for nothing..
I get it if not sure.. not married is easier to walk away from

But not getting married and having her still come back.. jus baffles my mind..

[Ryan S 4]

The advice given above by others is quite contrary to what you just said. We may still be apply for an AOS if she leaves prior to the 90 days and then comes back on a tourist visa or if she overstays but we get married without her leaving. And no, I will not be marked for life by the USCIS.

Agreed. Why why why??? I just don't get it. If you don't get married, you are not going to live together in the US. Period. If you are even asking this question it doesn't seem like your relationship is serious or very important to either of you, because if you don't get married you will be marked for life by USCIS.

[EAS 45]

The advice given above by others is quite contrary to what you just said. We may still be apply for an AOS if she leaves prior to the 90 days and then comes back on a tourist visa or if she overstays but we get married without her leaving. And no, I will not be marked for life by the USCIS.

Regardless of whether you marry this woman or not, if you ever file another I-129F you will have to disclose the fact that you filed a petition that led to the current woman receiving a K-1. If your second [or greater] filing of a I-129F is not for the same beneficiary you will also find that the US Government will disclose the previous petition(s) to the beneficiary of any future petition(s).

Edited May 8, 2013 by EAS

[Ryan S 4]

Understood, thanks. I have no intention of filling another I-129F.

Regardless of whether you marry this woman or not, if you ever file another I-129F you will have to disclose the fact that you filed a petition that led to the current woman receiving a K-1. If your second [or greater] filing of a I-129F is not for the same beneficiary you will also find that the US Government will disclose the previous petition(s) to the beneficiary of any future petition(s).

[MedRoni 161]

The advice given above by others is quite contrary to what you just said. We may still be apply for an AOS if she leaves prior to the 90 days and then comes back on a tourist visa or if she overstays but we get married without her leaving. And no, I will not be marked for life by the USCIS.

If she comes back on a tourist visa with the intent to marry and stay this is fraud. She can get married and leave on a tourist visa, but not come on a tourist visa with the plan to adjust status.

Honestly the best, safest and one that follows the laws the best was the option to have her leave before 30 days and return on a tourist visa to spend time to determine if you want to get married.

Of course as always, just my 2 cents

[Lynkali 163]

You cannot have her come LATER on a tourist visa, then get married, and then attempt to adjust status based on that marriage. If you're thinking you can, I don't understand your reasoning.

On a tourist visa: she could get married but would have to leave the USA and wait in Spain while you file a brand-new CR-1 process, including the 8-12 month wait for that. She cannot stay in the USA because she would have immigrant intent, and that is violating the terms of her tourist visa, it will lead to fraud charges and a lifetime ban on entry into the USA.

On the K-1: you must marry within 90 days. That's it. If you don't marry within 90 days on the K-1, you cannot adjust her status to legal residency afterwards.

Marriage within 90 days or go home, most likely forever since a second K-1 would prove difficult.

I've seen several of these threads now and I have to admit I'm running out of patience/empathy for the posters. If you wanted to "get to know her" that was NOT a reason to file the K-1, as the K-1 specifically leads to marriage. I also feel very badly for her, if this is your unilateral decision that is majorly impacting her life and legal status.