I-130 Necessary???

[MiamiMark 7]

Hi everybody, great website with lots of good information.

I’m hoping someone knows the answer to my question:  

I’m a US Citizen and my fiancée (now wife) entered the US legally pursuant an approved I-129F (K1) Fiancée Visa.

We married within the 90 days, but we did not apply for her AOS with the Form I-485 yet.  Now it is day 120 (so my new wife has already overstayed by 30 days), and my wife is still here in the US with me.

If we had filed the I-485 after getting married and WITHIN the 90 days this wouldn’t be an issue, but since we didn’t (we only married, but didn’t submit the I-485 yet).... do we now need to submit an I-130 (Petition for Alien Relative) with our I-485 since she has now overstayed and is out of status?

Thanks for any advice/assistance you can give us.

Edited October 9, 2018 by MiamiMark

[Ben&Zian 4,397]

3 minutes ago, MiamiMark said:

Hi everybody, great website with lots of good information.

I’m hoping someone knows the answer to my question:  

I’m a US Citizen and my fiancée (now wife) entered the US legally pursuant an approved I-129 (K1) Fiancée Visa.

We married within the 90 days, but we did not apply for her AOS with the Form I-485 yet.  Now it is day 120 (so my new wife has already overstayed by 30 days), and my wife is still here in the US with me.

If we had filed the I-485 after getting married and WITHIN the 90 days this wouldn’t be an issue, but since we didn’t (we only married, but didn’t submit the I-485 yet).... do we now need to submit an I-130 with our I-485?

Thanks for any advice:assistance you can give us.

 

No. Just file for the I-485 and EAD/AP as you would have originally. Overstay will be forgiven, no issues.

 

A lot of people go over the 90 days before filing. The 90 days is just to get married, so long as you fulfilled that, you're fine.

 

You could technically wait years and then just AOS with the I-485 and it's still fine.

 

 

[MiamiMark 7]

Thanks B&Z!  Much appreciated!

You seem very confident in your answer, so I’m hoping now that nobody else comes along and says differently.  😀😬

[debbiedoo 2,339]

B&Z is right. You married within the 90 days. Overstays are forgiven for spouses.  File and everything is fine.

[MiamiMark 7]

Thanks Debbie!

 

[Mollie09 1,543]

You'd need the I-130 if you hadn't married within the 90 days, otherwise you're fine

[MiamiMark 7]

Thanks Mollie, I appreciate the confirmation.

[Ontarkie 13,917]

~~Moved to AOS Family K1 /K3 from K1 P&P - as the OP is about to get the AOS process going.~~

[barashka 97]

On ‎10‎/‎9‎/‎2018 at 4:59 PM, Ben&Zian said:

 

No. Just file for the I-485 and EAD/AP as you would have originally. Overstay will be forgiven, no issues.

 

A lot of people go over the 90 days before filing. The 90 days is just to get married, so long as you fulfilled that, you're fine.

 

You could technically wait years and then just AOS with the I-485 and it's still fine.

 

 

On the I-485, what would you fill in for Question 24 in Part 1 that asks what your current immigration is? (for someone who came here on a K-1, got married within 90 days but, with an expired I-94?) Would we put K-1 Visa Holder or Out of Status?

 

Many thanks in advance!

[MiamiMark 7]

We left it BLANK.