Overstaying Question

[ScooterJones 21]

As you know we allow most countries 90 days to visit the US on a tourist visa. Would it be OK if your fiance visited you for 80 days and then came back on a K1 Visa and you did not get married until 60 days after arrival? 

 

You wouldn't have to get married within 10 days to prevent overstaying would you? Probably a silly question but my Canadian fiance stayed 170 days out of 180 already so was just curious. 

[Greenbaum 12,258]

1 minute ago, ScooterJones said:

As you know we allow most countries 90 days to visit the US on a tourist visa. Would it be OK if your fiance visited you for 80 days and then came back on a K1 Visa and you did not get married until 60 days after arrival? 

 

You wouldn't have to get married within 10 days to prevent overstaying would you? Probably a silly question but my Canadian fiance stayed 170 days out of 180 already so was just curious. 

On a K=1 visa you have to marry and file AOS within the 90 days to stay in status.

[Unlockable 7,306]

1 hour ago, ScooterJones said:

As you know we allow most countries 90 days to visit the US on a tourist visa. Would it be OK if your fiance visited you for 80 days and then came back on a K1 Visa and you did not get married until 60 days after arrival? 

 

You wouldn't have to get married within 10 days to prevent overstaying would you? Probably a silly question but my Canadian fiance stayed 170 days out of 180 already so was just curious. 

The K1 visa has its own clock. So it is a fresh 90 days from the day he enters the us with the K1 visa. So as long as he marries withing the  90 days of the K1 visa, he is good.

[HRQX 4,145]

On 10/28/2019 at 8:27 AM, ScooterJones said:

Would it be OK if your fiance visited you for 80 days and then came back on a K1 Visa and you did not get married until 60 days after arrival?

Yes, the K-1 has it's own clock because it allows dual intent (i.e. she's allowed to have preconceived intent to submit I-485 after entering with the K-1 and marrying you).

On 10/28/2019 at 8:27 AM, ScooterJones said:

my Canadian fiance stayed 170 days out of 180 already

For tax year 2019 she might be a resident alien for tax purposes because of the substantial presence test: https://www.irs.gov/taxtopics/tc851 If she isn't and you marry on or before 12/31/2019, then she can try to opt-in: "you may be able to choose to be treated as a resident alien for part of a calendar year by making the First-Year Choice or, if you are a nonresident alien married to a U.S. citizen or resident alien, you and your spouse may be able to make a joint election to treat you as a resident alien for the entire calendar year."