A K1 Visa, otherwise known as a fiancé visa, allows a United States citizen’s engagement partner to enter the United States under the precondition that they will get married to their U.S. partner within 90 days. After marriage, the newly wedded spouse can then “adjust status” by applying for permanent residence via green card. If in the event that you are not able to marry within 90 days and your visa expires, it’s still your best bet to get married as soon as possible and then apply for a green card. Learn about why this is and what you can do in the event that your K1 visa expires.
Filing For Your Green Card After Deadline
In the event that the foreign fiancé does not get married within 90 days and overstays the duration of their K1 visa, couples generally still have time to get married and apply for a green card. That being said, the foreign fiancé is technically unlawful in the United States, and, in the event of a run-in with immigration authorities, could presumably be placed in removal (deportation proceedings). Thus, if possible, it’s generally recommended that you get married and submit your adjustment of status packet as soon as possible. If it is based on your marriage to the person who originally petitioned your K1 visa, U.S. Citizenship and Immigration Services (USCIS) will likely accept it for processing.
Form I-130 (Petition For Alien Representative)
A key distinction between applying for an adjustment of status after, versus before the 90-day limit is that the foreign fiancé can no longer rely on the proof of having been approved for a K1 visa as reasonable grounds for their “adjustment of status.” As a result, the U.S. citizen spouse must fill out an additional form (Form I-130), otherwise known as a “visa petition.” This “Petition for Alien Relative” form confirms your eligibility to immigrate, based on your immediate relationship to a U.S. citizen (your new spouse), rather than as a fiancé. It also provides evidence to support your spouse’s willingness to support your application.
The Form I-130 requires a filing fee of $535 (as of 2019) and requires several important filing guidelines and documents. Because the foreign spouse is already ‘legally’ in the U.S., the I-130 can be submitted with the rest of their green card application, which can be sent by mail to U.S. Citizenship and Immigration Services (USCIS). A few weeks after you send in the visa petition, you should get a receipt notice from a USCIS Service Center which will provide you with where to look online to check how long the petition is likely to remain in processing.
Note: What To Do If You’ve Stayed Unlawfully for Over Six Months
In situations where the foreign spouse fails to adjust status within 6 months, it is important that you do not leave the United States. If you have stayed in the United States beyond your visa expiration date, without filing for a green card, you could be subject to laws that prevent you from entering the United States in the future. For many undocumented immigrants, this often means a 3 or 10-year “bar” from access to the United States, requiring years of separation from their U.S. spouse before they are even able to apply for legal re-admission.
If you find yourself in this situation, don’t hesitate to contact an immigration attorney as soon as possible. An experienced attorney can help you determine the best next steps to secure your green card while avoiding the multi-year bars for unlawful presence.
What To Do If You’re Arrested For Unlawful Presence
In the event that the Immigration and Customs Enforcement (ICE) catches up to you before you have submitted your Form I-130 and green card application, and places you in removal proceedings for deportation, there still is one other option. In these situations, it is possible to apply for your green card before a judge in Immigration Court. While the application itself is similar to the I-130, immigration law, unfortunately, mandates that this route to adjustment of status requires extensive (greater than average) scrutiny by the judge presiding over the case.
Securing a green card under these circumstances requires that you convince the judge that your marriage is legitimate, despite being late, and requires that you are providing more than sufficient evidence to support your claims.
Contact An Experienced Immigration Attorney Today
Without a doubt, applying for a green card after a K1 visa has expired is among the most challenging and nerve-wracking of all immigration cases. In addition to being susceptible to arrest and eligible for the multi-year bars for unlawful presence, couples are tasked with getting married, filing complex forms and providing the necessary materials to support their claims. Whether you need assistance filing the Form I-130, securing a green card while avoiding the multi-year bars, or appealing for adjustment of status before an immigration judge, an immigration attorney can be an invaluable resource throughout this troubling process.
Contact the immigration attorneys at Johnson & Masumi today for assistance securing your marriage-based green card.