Fiance’ Visa USA Green Card Process
K-1 Fiance’ Overstays Visa, Can She Adjust Now?
Q.
Hello, I brought my girlfriend here on a fiance’ visa. I got cold feet and she wound up overstaying the visa. I came to my senses, and married her. We live in the U.S. and understand she cannot leave until she adjusts her status. What form is necessary to adjust her status?
Can I also submit a petition to travel for her family for a future wedding, and prepare the necessary paperwork to bring her child here? I am going to adopt her child. What do I need to file for them? I want to submit everything at the same time.
Yes, I bit off a lot, but my wife and child are worth it. Sorry for the multiple question post. Please give me an idea on how to make my life easier on filing the paperwork.
— Anonymous
A.
The easiest way to make your life easier with all of the paperwork is to hire an attorney in your area with extensive experience in immigration law, particularly family-based visas.
Generally, a person who enters the United States on a K-1 fiance visa must get married within 90 days of entry to the K-1 petitioner. However, it is still possible for the foreign national to adjust her status in the United States to lawful permanent resident if the marriage occurred outside the 90 day period.
An I-130 petition must be filed for her, and a separate one for the child, together with adjustment of status packages for them. The catch is that she is now out of status and has begun accruing unlawful presence in the United States, which started from the expiration date on the I-94 card and continues to accrue until the adjustment of status application is filed.
When a person accrues 180 days (or 365 days) of unlawful presence, and if that person departs the United States and attempts to reenter, s/he will be barred from reentering for 3 or 10 years, depending on the amount of unlawful presence. Depending on the amount of unlawful presence, your fiancé may be subject to those bars. With that being said, even if she applies for and gets issued a travel document when she applies for adjustment of status, she may be barred from reentering.
If the child was listed on the Form I-129F as your fiance’s child, the child could have accompanied your fiancé to the United States or may follow to join her with a K-2 visa. Unless you want to, it is not necessary to adopt the child for him to immigrate.
To adjust her status, you wife will need to fill out Form I-485 and provide all of the necessary supporting documentation. As for her family, they may want to apply for a visitors visa in with the appropriate U.S. Embassy. They will need to document there intent to return to their country after their temporary stay in the United States. There may be other visa options for them too, depending on their desires.
It may be wise for you and your wife to consult with an experienced immigration attorney to review you entire immigration case and properly advise you on how to proceed.