Need advice: Is it possible to withdraw a K1 and go for AOS?

[justin9696 0]

Hi everyone,

 

I'm Justin from The Netherlands, currently in the US on a ESTA (VWP) to visit my girlfriend. We just filed for the K-1 Fiance visa on April 1st and got our confirmation back about a week ago that it has been received by the USCIS. After dating for 1,5 year and going through many challenges with traveling back and forth, we decided we really want to marry asap now while I'm on this trip. We teamed up with Boundless (a lawyer-support program). They advised us to go for the K1 visa since the processing time is only 6 months. After filing for the K1 we suddenly got updates that there's been a run on K1 visas and the processing time has gone back to a minimum of 15-19 months. Since we are Christians, it's starting to become really difficult to wait any longer after already 1.5 years of waiting. Therefore, we got kinda freaked out by the fact that it could take another 1.5 years and then after that we still need to plan a wedding, etc. So we are currently considering changing our whole plan and going for AOS, but it seems difficult to find good information about the possibilities of AOS. Some say you have to overstay, get married and then file AOS. Others say you have to do it in your 90 days of your tourist visa. On this trip, I came in on the intention of just visiting my girlfriend and to get engaged by the end of the trip (I'll ask her next week :)), and just enjoying our time together here in the US. While we're here we decided to take this to the next step, so I don't think it's visa fraud? Can someone please help me and advice how to go forward with this? Is it an option to withdraw a K1 visa, overstay on the ESTA, plan a wedding for in the summer and apply for AOS right after? What are the risks? My dad in Holland is getting older and I do need to be able to travel back once I have my travel permit/green card. I could easily wait for about a year and a half without traveling, that's no problem for me. Me and my girlfriend just want to be together and get married now.

 

Another good thing to know is that we can't marry and stay in Holland, my country, since you have to be 21 to be able to live in a Holland as a foreign outside of Europe fiance(e). So we are kinda left with no choice. We have to live here. Also good to know is that we're at the end of my 3 month trip. On May 15 I have a return flight to Holland and my esta expires in June. So I have to make final decisions really soon.

Can someone please advice me since I'm so stressed and have terrible anxiety about how to go forward? Is there a risk they won't approve the AOS since I'll overstay for example? And does that mean I will get deported or will never be able to travel back to Europe again?

 

Thanks so much for your help everyone. Appreciate it!

[Crazy Cat 39,362]

4 hours ago, justin9696 said:

They advised us to go for the K1 visa since the processing time is only 6 months.

That is not accurate.  The average, as reported by other VJ members, is 440 days from filing to interview:

 

You can legally stay and adjust status after marriage.  However, be aware that you cannot leave the US or work for up to 6 months.  Good luck.

Edited April 26 by Crazy Cat

[Crazy Cat 39,362]

14 minutes ago, justin9696 said:

Is there a risk they won't approve the AOS since I'll overstay for example?

Is your fiance a US citizen?  Be aware that, once you submit a proper I-485, you will be granted authorized stay in the US until the I-485 is either approved or denied.

Edited April 26 by Crazy Cat

[OldUser 4,917]

2 minutes ago, Crazy Cat said:

 However, be aware that you cannot leave the US or work for up to 6 months.  Good luck.

In some cases for a year or more.

[Crazy Cat 39,362]

Just now, OldUser said:

In some cases for a year or more.

Yep.  You're right.  There are fewer I-131s filed after April 1st.

[Daphne . 1,688]

From one Dutchie to another, please think very carefully about doing the AOS, you really don’t want to be stuck in the US without being to work or leave for a good few months. You mention that “since you’re Christians you can’t/don’t want to wait any longer”, don’t make huge decisions based on primal desires/needs. I assume that’s what you are referring to? 

 

If possible (not sure how much time you have left on your Esta) why not get married now, leave the US after your visit and do the spousal visa (CR1) instead?

Edited April 26 by Daphne .

[justin9696 0]

13 minutes ago, Crazy Cat said:

Is your fiance a US citizen?  Be aware that, once you submit a proper I-485, you will be granted authorized stay in the US until the I-485 is either approved or denied.

Yes she is! Okay sounds good. So does that mean that we can cancel the K1? Withdraw it? And just overstay on the trip, get married here sometime soon and file for AOS?

[justin9696 0]

17 minutes ago, Daphne . said:

From one Dutchie to another, please think very carefully about doing the AOS, you really don’t want to be stuck in the US without being to work or leave for a good few months. You mention that “since you’re Christians you can’t/don’t want to wait any longer”, don’t make huge decisions based on primal desires/needs. I assume that’s what you are referring to? 

 

If possible (not sure how much time you have left on your Esta) why not get married now, leave the US after your visit and do the spousal visa (CR1) instead?

Hi Daphne thanks for the help. The main thing is we just want to be together now and don't get separated anymore since we're truly in love. So marriage is a wise next step and the best for us. The waiting for the fiance visa is killing us now and also a spousal visa would cause trouble, since I have to wait in holland then for even longer. She can visit me only 3 months every 6 months in holland. With the Christian context I mean that traveling back and forth right now could cause danger while we're still dating and not married since we're already dating for 1.5 year.

[Daphne . 1,688]

23 minutes ago, justin9696 said:

Hi Daphne thanks for the help. The main thing is we just want to be together now and don't get separated anymore since we're truly in love. So marriage is a wise next step and the best for us. The waiting for the fiance visa is killing us now and also a spousal visa would cause trouble, since I have to wait in holland then for even longer. She can visit me only 3 months every 6 months in holland. With the Christian context I mean that traveling back and forth right now could cause danger while we're still dating and not married since we're already dating for 1.5 year.

You can still visit her while your CR1 is pending, I did the same thing and had no issues. So you could still see each other while your CR1 is pending.  I am not sure what you mean by "traveling back and forth right now could cause danger while we're still dating and not married since we're already dating for 1.5 years"? If you have your mind set on adjusting status, you can of course do that now, just make sure that you don't make short-term decisions with long-term consequences. Good luck!

[Timona 3,950]

You can't AOS on ESTA

[OldUser 4,917]

31 minutes ago, Timona said:

You can't AOS on ESTA

You can, it's not the best path but people do it.

Edited April 26 by OldUser

[Rachel n Tyler 6]

I personally wouldn't do it.  If your AOS gets denied, you're back to square 1. You'll have to return, I don't know how many issues it can create for future visa's etc, but there's a chance it might. And if it takes long, it might cause the wait for the K3 visa to skyrocket. For all you know it can go to 2-3 years.. It's all 'if' 'if'. But me personally, fellow Dutchie hello, I applied in January, and I'm likely getting my next step in June/July, which will probably result me in moving end of the year. 

[Timona 3,950]

23 minutes ago, OldUser said:

You can, it's not the best path but people do it.

 

Tha argument is that you need to be admitted with a Visa, and VWP is the opposite...that's where I'm getting conflicted too.

 

https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-7

[Crazy Cat 39,362]

6 minutes ago, Timona said:

 

Tha argument is that you need to be admitted with a Visa, and VWP is the opposite...that's where I'm getting conflicted too.

 

https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-7

"

C. Visa Waiver Programs

A noncitizen admitted as a nonimmigrant without a visa under a Visa Waiver Program is barred from adjustment of status.^[8] Similarly, a noncitizen admitted as a nonimmigrant without a visa to Guam or to the CNMI is barred from adjustment of status.^[9] These bars do not apply, however, to those seeking to adjust status as an immediate relative of a U.S. citizen or VAWA-based applicants."

[Crazy Cat 39,362]

2 hours ago, justin9696 said:

Yes she is! Okay sounds good. So does that mean that we can cancel the K1? Withdraw it? And just overstay on the trip, get married here sometime soon and file for AOS?

Yes, you can marry, then apply to adjust status.  Once you marry, the I-129f is voided, but the US spouse can send a letter of withdrawal along with the I-130/I-485.  Personally, I would make sure the I-485 is filed prior to the expiration of your VWP visit.  Just be aware of the restrictions regarding work and travel.  The extra expense will be for an I-130.

Edited April 26 by Crazy Cat