Can K-1 Fiance Adjust If 90 Day Period Has Elapsed?
My fiancée is here from Jamaica on a K-1 visa. She is near the end of the 90 day passport date and we have not married yet. We were scheduled to marry four weeks ago. My fiancée was overwhelmed with being in this country and planning a wedding that we decided to postpone the wedding. What will happen and what will we need to do if the wedding is a few weeks past the 90 day time?
— Anonymous
Generally, a K-1 nonimmigrant visa is used by a foreign national fiancé of United States citizen to enter the United States to get married within 90 days of admission to that United States citizen. If the marriage does not occur within the 90 day period, s/he is required to depart the United States. The K visa becomes void.
If s/he does not depart the United States upon the visa’s expiration, s/he is subject to removal.
The good news is that even if the marriage occurs outside of the 90 day period, you may still petition for her and she is still eligible for adjustment of status. In fact, you may concurrently file Form I-130, Petition for Alien Relative and Form I-485, Application to Register Permanent Residence or Adjust Status, along with all of the other appropriate forms and supporting documentation. The catch is that the K-1 beneficiary who does not marry the original petitioner is not eligible to adjust status based on marriage to a different petitioner. Other than this restriction, a fiancé who overstayed his or her authorized period of stay is treated just like any other individual who was inspected and admitted into the United States but overstayed their respective visa. Even so, if you and your fiance’ agree, you should get married and file the petitions and applications as soon as possible to avoid the risk of deportation.
If you have further questions about the effect of not getting married during the 90 day period or about how to file the petition and/or applications, you should consult with an experienced immigration attorney.
Michael Shane and Evan Shane, Immigration Attorneys