October 6, 2008: K-3 Spouse Refuses To Follow Through With Filing

K-3 Spouse Refuses to Follow Through With Filing

I am married to a U.S. citizen. My husband had filed for a K-3 visa, I am finally here after a long delay. I have been here for 3 months. My problem is that he will not file my papers. I have no access to anybody as I cannot drive and I have no help and money. Please help as I am getting insecure with every single day and I don’t know what to do.
— Anonymous

Unfortunately, it appears you have been put in a very difficult position. Because you entered the United States with a K-3 nonimmigrant visa as the spouse of a United States citizen, you are only eligible to adjust your status to lawful permanent resident status based upon your marriage to that United States citizen petitioner. If the United States citizen spouse will not follow through with his part of the adjustment of status process, then you will not be successful in obtaining a green card. If you divorce from your United States citizen spouse and marry another United States citizen, you will be ineligible to adjust your status to permanent resident based on that marriage because the law prohibits such an adjustment of status when the subsequent petitioner is not the K-3 petitioner.

It may be in your best interest to return to your home country before your authorized period of stay expires to prevent the accruing of unlawful presence. Unlawful presence begins to accrue the day after your authorized period of stay expires on your I-94 card. If you accrue 180 days of unlawful presence, and then leave the United States, you will be barred from re-entering the United States on another visa for 3 years. If you accrue 1 year, you will be barred for 10 years.

It appears that your authorized period of stay may have already expired or will soon expire because K-3 visa entrants are generally authorized to stay for 3 months. On another note, if you have been abused by your spouse and you are otherwise qualified, you may be eligible to self-petition under the Violence Against Women’s Act (VAWA). It would be wise for you to consult with an experienced immigration attorney to evaluate your case and explain to you all of your options.

Michael Shane and Evan Shane, Immigration Attorneys