Enter on K-1. Marry within 90 days. Wait 2 years for AoS

[SirLancelot]

First off, I am of the belief that one must get married and file AoS within 90 days of entering the US on a K-1 visa.

 

However, I do read from many other CFL members who maintain that there's no time limit as to when AoS must be filed after marriage on a K-1. If we accept this to be true, then what if the couple marries within 90 days of entry but waits until 24 months after the marriage to file for the AoS? Will the SO be granted a permanent 10 year GC the first time around? Will this couple bypass the Conditional GC and the removal of conditions process completely?

 

What say you all?

[NY-Viking]

Interesting theory, but it's got LOTS of problems.

 

We're an example that you only need to get married within the 90 days, and can file sometime thereafter, but in the time between the 90 day expiration and filing your SO will be out of status. Meaning she's not illegally in the US, but she can't do anything either. She won't be able to apply for a driver's license (and if she has one, the DMV will probably revoke it for residency restrictions). She won't be able to work. She won't be able to leave the US for travel. (The advanced parole and work documents can only be applied for once you file for AOS. Small edit: Since this question is about K1, and getting married within the 90 days, AOS is requried for EAD; if you're coming on a K3, then EAD can be applied for without AOS (I think) as long as the visa is still valid.)

 

So, if your wife (or husband ...) plans to only stay at home, then I guess it's an option, but I wouldn't recommend it. If she ever has any legal difficulty, she'll probably be deported and you'll have problems filing another application.

 

If you want to avoid the 2 year green card, you could always get married in China and apply for a green card there (not K3). By the time they get to your interview, it just might be 2 years and you'd get the full 10 year card.

 

Additional edit: I've had friends that got their AOS interview within a few weeks of their 2 year wedding anniversary, much to their disappointment since they only got a 2 year card. In our case, we had the interview slightly more than 5 months after we applied, so waiting to file definitely would not have been worth our while. With that said, depending on how fast your processing center is, waiting a few months may work out that the interview occurs after the 2 year anniversary, and a few months "out of status" may not be such a big deal (depending on your SO). I just reviewed the other thread about postponing the interview; that may be an option as well, but I'd use some other excuse ... like having to be out of town then rathern than just wanting the 10 year card. As long as it's not put off too far into the future, seems like a good way to avoid the extra fees.

Edited February 21, 2007 by NY-Viking (see edit history)

[tywy_99]

You're technically out of status after the K1 visa expires whether you're married or not and unlike the 2 yr. K3 visa the K1 visa holder will be accruing unlawful presence which would not look good in the eyes of the USCIS, especially after two years. There are time limits to take into consideration.

[Guest Duke]

You're technically out of status after the K1 visa expires whether you're married or not and unlike the 2 yr. K3 visa the K1 visa holder will be accruing unlawful presence which would not look good in the eyes of the USCIS, especially after two years. There are time limits to take into consideration.

 

Just to clarify, I've only seen K3 filers talking about waiting to complete AOS until after their two-year wedding anniversary. I may have missed a K1 making that suggestions but the K3 does not accrue unlawful status until they've been in the US two years. K3's from China have already been married 8 months or more before arriving in the US, so waiting another 12 to 16 months is well within their/our wives visa validity.

 

K1's by definition have two problems with this.

 

1. They aren't married until after they arrive.

2. They begin accruing unlawful status 90 days after arrival.

 

I'm not aware of K1's testing the lengths to which they can wait to file AOS. Maybe others have access to this info.

[david_dawei]

The 90 requirement is for marriage, not filing. There is no stated time limit to filing. (USCIS has said as much to a member).

 

If one marries within 90 days, accruing unlawful status is non-applicable, unless that person leaves the US.. in which case, as a K1, they lost their re-entry ability and just subjected themself to a potential re-entry ban.

 

Why is the overstay not considered as accruing unlawful presence? Overstay (like unauthorized work) is forgiven via marriage to a USC. That's all over the internet and you'll find it discussed at most immigration lawyer sites as well... Top that with numerous, actual cases that prove it as well. See VJ for examples. The longest wait I've heard is someone whose overstay was 10 years; forgiven due to marriage.

 

The issue is really one with DOS more than USCIS... if one has accrued overstay and leaves the US, then the ability to re-entry or to get a visa for entry is very problematic.

[SirLancelot]

If you want to avoid the 2 year green card, you could always get married in China and apply for a green card there (not K3). By the time they get to your interview, it just might be 2 years and you'd get the full 10 year card.

 

No, I don't intend to try this. I was simply putting it out there for thought. As I said in my original post, I personally am of the belief that one must marry and file within 90 days. But many on here, DavidZ is a prime example, who assert that there's no time limit at all, that all will be forgiven at the AoS interview. So if that holds up, then I'm thinking that waiting 2 years after marriage, it will be one fell scoop to apply for a 10 year GC.

 

Personally, I'm going to file AoS for my SO promptly after we marry. It will be filed will within 90 days of her arrival.

 

DavidZ, so you think my hypothesis would work right? Wait 2 years after the marriage then file for AoS and directly get a 10 year GC without having to deal with the lifting of conditions. ???

[NY-Viking]

...

DavidZ, so you think my hypothesis would work right? Wait 2 years after the marriage then file for AoS and directly get a 10 year GC without having to deal with the lifting of conditions. ???

 

I knew you weren't going to try it and just were asking hypothetically, and I know this is addressed to DavidZ this time, but I'll respond again anyway.

 

I think your hypothesis would work, and would save money, but it will be problematic for the SO during the "waiting period" after marriage, as I discussed above.

[Randy W]

Remember, though, that the "unlawful presence" accrues AFTER the marriage to the USC.

 

I've heard alternately 6 months or 1 year as the limit to apply for AOS.

[david_dawei]

If you want to avoid the 2 year green card, you could always get married in China and apply for a green card there (not K3). By the time they get to your interview, it just might be 2 years and you'd get the full 10 year card.

 

No, I don't intend to try this. I was simply putting it out there for thought. As I said in my original post, I personally am of the belief that one must marry and file within 90 days. But many on here, DavidZ is a prime example, who assert that there's no time limit at all, that all will be forgiven at the AoS interview. So if that holds up, then I'm thinking that waiting 2 years after marriage, it will be one fell scoop to apply for a 10 year GC.

 

Personally, I'm going to file AoS for my SO promptly after we marry. It will be filed will within 90 days of her arrival.

 

DavidZ, so you think my hypothesis would work right? Wait 2 years after the marriage then file for AoS and directly get a 10 year GC without having to deal with the lifting of conditions. ???

As far as I know, you will not find any published timeframes.

 

One can attempt to make some sense of real-life experiences, which I am drawing from... based on that, I agree with Viking (it would work if you waited) and Don (why in the world wait)...

 

But, we don't know what every IO will say around the country who ends up with the case.. I could present a hypothetical of each one, but that would take this whole hypothetical case too far

[SirLancelot]

 

 

I knew you weren't going to try it and just were asking hypothetically, and I know this is addressed to DavidZ this time, but I'll respond again anyway.

I think your hypothesis would work, and would save money, but it will be problematic for the SO during the "waiting period" after marriage, as I discussed above.

 

NY-Viking, I value everyone's input--so long as they are sincere and applicable to the question at hand. Thanks for your comments.

 

 

Don wrote:

Personally I can't fathom why anyone would want to postpone filing AOS on a K-1. A 2 year card has all of the benefits and rights bestowed on a 10 year green card holder. Why live as a non-person for two years to save filing for removal of conditions?

 

Well, I was thinking some people might have had enough of the never-ending paperwork with either USCIS or DoS. I-129F, then AoS, then removal of conditions, then N-400. Some may want to save one step and go directly to the permanent 10 year GC before moving on to citizenship. It's all hypothetical.

 

I was thinking in a case where the SO does not need to work and does not need to go back to China for the next two years, what's the practical purpose of a GC? As for an ID, one can use a Passport everywhere that a DL or state ID is accepted, so unless one needs to drive, a DL is not that critical. I have a cousin living in NYC for the past 12 years; he doesn't drive or even own a car there.

 

I can see a situation where a SO is married to a relatively wealthy person and they live in a big metro city where a car is not necessary. She need not work, nor does she need to drive and she has no real need to go back to China to visit within 2 years. In such a situation, I don't see a need for a temporary GC. Could they not just wait until 2 years have elasped and file AoS directly for a 10 year permanent GC?

 

Oh, one wrinkle just occured to me. For the purpose of citizenship, the 3 years starts from the day that one acquires conditional GC right? So if one delays 2 years before AoS, that two years is wasted and not counted towards the time required for naturalization, correct?

 

So if citizenship is the ultimate goal, then one should promptly file AoS immediately following marriage.

[jim_julian]

Oh, one wrinkle just occured to me. For the purpose of citizenship, the 3 years starts from the day that one acquires conditional GC right? So if one delays 2 years before AoS, that two years is wasted and not counted towards the time required for naturalization, correct?

 

So if citizenship is the ultimate goal, then one should promptly file AoS immediately following marriage.

 

 

Hmmm ... is that right? Doesn't the 3 year clock start as of the date of legal entry into the US??

[Trigg]

First off, I am of the belief that one must get married and file AoS within 90 days of entering the US on a K-1 visa.

 

However, I do read from many other CFL members who maintain that there's no time limit as to when AoS must be filed after marriage on a K-1. If we accept this to be true, then what if the couple marries within 90 days of entry but waits until 24 months after the marriage to file for the AoS? Will the SO be granted a permanent 10 year GC the first time around? Will this couple bypass the Conditional GC and the removal of conditions process completely?

 

What say you all?

We had one member a while back that brought his darlin oveer on a K1, got married and sent off for the greencard. It took them 18 months to set up an interview. If memory serves he delayed the interview by not preparing until after the two year date of their marriage--thus a 10 year green card.

 

Seems that filing a touch late and then 'accidently' not including all the required documents etc.. Could easily delay the already lengthy process for two+ years and BINGO--10 year green card.

 

Hmmm, imagine that--slowing the process????????!!!!!!!

[LeeFisher3]

Oh, one wrinkle just occured to me. For the purpose of citizenship, the 3 years starts from the day that one acquires conditional GC right? So if one delays 2 years before AoS, that two years is wasted and not counted towards the time required for naturalization, correct?

 

So if citizenship is the ultimate goal, then one should promptly file AoS immediately following marriage.

 

 

Hmmm ... is that right? Doesn't the 3 year clock start as of the date of legal entry into the US??

Nope, the 3 year clock begins for the spouse of a USC when they receive LPR status AND requires 3 years of continuous residence in the US.

 

There are many details to the 3 years continuous residence thing as to how long you can be out of the US and it not be counted against you.

[SirLancelot]

We had one member a while back that brought his darlin oveer on a K1, got married and sent off for the greencard. It took them 18 months to set up an interview. If memory serves he delayed the interview by not preparing until after the two year date of their marriage--thus a 10 year green card.

 

Seems that filing a touch late and then 'accidently' not including all the required documents etc.. Could easily delay the already lengthy process for two+ years and BINGO--10 year green card.

 

Hmmm, imagine that--slowing the process????????!!!!!!!

 

Very interesting indeed. I think it could indeed work if the couple wanted to purposely slow the process down. Good idea.

 

Lee said:

Nope, the 3 year clock begins for the spouse of a USC when they receive LPR status AND requires 3 years of continuous residence in the US.

 

Yep, I think the drawback that I didn't initially consider was the 3 year requirement for naturalizing. If one has the citizenship goal, then it's best to proceed with immediate AoS.

[yuehan123]

I was thinking in a case where the SO does not need to work and does not need to go back to China for the next two years, what's the practical purpose of a GC? As for an ID, one can use a Passport everywhere that a DL or state ID is accepted, so unless one needs to drive, a DL is not that critical. I have a cousin living in NYC for the past 12 years; he doesn't drive or even own a car there.

And the passport contains an expired visa, right? Seems like a small, never the less, needless risk.