K-1 Visa problems
December 10, 2007 8:16 PM   Subscribe

K-1 (Fiance) Visa extension?

A friend came to the U.S. on a fiance visa and the 90 day deadline to get married came and went. It was an amicable decision to not get married, but she would like to stay and work and go to school. She would like to talk to someone about this, but is afraid that if she talks to the local US Citizen and Immigration Office that they will deport her and she will never be allowed to come back. She spent a lot of money and effort to come here in the first place and doesn't want to lose this opportunity. What recourse does she have? She is currently working as a nanny for a family, if it matters.
posted by mcarthey to Law & Government (12 answers total)
This is, absolutely, a see-a-lawyer situation.
posted by Ironmouth at 8:36 PM on December 10, 2007

Get her over to www.visajourney.com. They really are excellent for advice. I'm thinking that a lawyer will be the next step after that.

Definitely do not go to the USCIS. They aren't interested in discussing cases or giving advice, just in ticking boxes and binary decisions along the lines of "you leave the country immediately/you can stay if you fill out these million forms".
posted by merocet at 8:39 PM on December 10, 2007

She should not see a lawyer, she should see an immigration lawyer, as there is no reason to think that some local general-purpose lawyer who does wills and divorces all day or an ambulance chaser is going to be up on the ins and outs of administrative law in USCIS/ICE. My sense anyway is that it is deep juju that requires a specialist whose heart swims in that dark magic.

And she should prepare for bad news. I will be surprised if there is any easy pathway towards legal residence and work permission for her, unless she marries an American and files AOS. She had permission to enter the US and stay for 90 days to marry an American (or PR). Now that that's gone, odds are she's just another overstayer. Working while overstayed doesn't help matters.

And she should absolutely not leave the country until it is settled, or until she is advised that leaving and giving up is her best course of action.
posted by ROU_Xenophobe at 9:03 PM on December 10, 2007 [1 favorite]

She has overstayed her visa. There is no 'I don't want to get married but I want to stay anyway' adjustment of status. She needs an immigration lawyer, and she also needs to begin to prepare herself for the fact that she'll probably not be allowed to legally stay.
posted by happyturtle at 4:05 AM on December 11, 2007

She spent a lot of money and effort to come here in the first place and doesn't want to lose this opportunity.

It sounds like she already made the decision to give up that opportunity when she overstayed her visa.
posted by oaf at 4:34 AM on December 11, 2007

This is from the USCIS.gov website:

Eligibility Requirements: Until the actual marriage takes place, the fiancé(e) is considered a non-immigrant. A non-immigrant is a foreign national seeking to temporarily enter the United States for a specific purpose. A fiancé(e) may not obtain an extension of the 90-day original non-immigrant admission.

Here's my opinion:

I highly doubt she can stay here legally. You never mentioned why they never got married and whether they still wanted to. If they were to get married now, in order to adjust her status I'm pretty sure she would have to go back to her country of origin and file a hardship letter/paperwork/etc.

You can tell her to see an immigration lawyer but he won't be able to help much besides telling her to go back and that he can help with the paperwork if she decided to appeal. I'm almost 100% sure that even if she still wanted to marry the U.S. citizen she would have to leave the country while the decision/waiver/appeal was pending (sometimes years). If she doesn't want to marry the U.S. citizen she has no reason to be here as far as USCIS is concerned.

I'm really sorry; I've been in a similar situation I know how difficult all of this is.
posted by icarus at 8:24 AM on December 11, 2007

I'm almost 100% sure that even if she still wanted to marry the U.S. citizen she would have to leave the country while the decision/waiver/appeal was pending (sometimes years).

If she just married him (or another American) and filed AOS paperwork, my not-a-lawyer understanding is that USCIS nearly always forgives overstays for such people. Working while overstaying isn't good, though, especially if she's used fraudulent papers to get employment.

This stuff is deep, dark magic, and magic that contradicts itself half the time. Who knows what a good immigration attorney might be able to pull? Maybe Mr. Dude hit her and she qualifies for residence under something like a battered spouse provision -- I have no idea. Maybe there are programs for whatever country she's from -- I have no idea. Neither does she, unless she consults an immigration attorney at least once.
posted by ROU_Xenophobe at 9:02 AM on December 11, 2007

Immigration Lawyer time definitely.

There is no extension for the K-1 visa - it was for her to enter the US for the sole purpose of marrying the petitioner within 90 days of entry. It was also her work authorization until marriage (within the 90 days) and filing of AOS after marriage. That work authorization, as well as the visa, is now expired. Overtaying is frowned upon and so is working without authorization. She could be looking at being banned from entry for 5-10 years if she doesn't correct this soon. It may mean leaving and reapplying for another K-1 if they decide to marry later, otherwise she will likely need to pursue another visa option to enter the US legally.

After we followed all the rules (my wife and I), I would hope she will correct this and abide by the laws as well. Talk to a lawyer but I think her best bet is to follow lawyer advice which will most likely be to return to her country and reapply to enter and be honest about any overstay in the future. Overstaying is one thing, lying about it and getting caught doing so later when applying to get a visa or going through AOS process later on is totally another thing the USCIS frowns upon. Getting her situation corrected soon is the best advice.

There will likely be questions about her INTENT upon entering the US on a K-1. Entering on a K-1 knowing she likely would not marry violates the visa. Entering on a K-1 with the intent of not marrying and going to school and working past the 90 days is bad, that's what work visas and student visas are for and what she should apply for if marriage isn't in the picture anymore. Either way it will likely involve a trip home.
posted by clanger at 9:49 AM on December 11, 2007

As a (former) immigration lawyer, let me second everything said above (and particularly by clanger): she needs to address her immigration status now with an immigration attorney. Unauthorized employment is sometimes ignored, but overstays are not, and the bars to re-entry are no joke. The more times goes by, the worse this situation could get.
posted by hawkeye at 10:15 AM on December 11, 2007

n-thing the above. Get a lawyer and/or get a ticket home because the longer she waits on this the more time she accrues in unlawful presence. She needs to file the Change of Status and expect denial and she needs to do it before my far less friendly and liberal minded colleagues decide to pay her a visit.

Changing intent is far less frowned upon than changing intent and never making the other changes (for example change of status) that go along with it. If she fails to do this she will be branded as just another overstay and a liar and once she departs (either by her own will or someone else's) she will be scarlet lettered when she applies for a new visa or reentry even if she successfully manages to cross every i and dot every t and jump through every flaming hoop along the way.
posted by Pollomacho at 1:42 PM on December 11, 2007

Unauthorized employment is sometimes ignored, but overstays are not


The usual line on alt.visa.us.marriage-based, maybe including the resident lawyers, is that if you're overstayed and marry an American, it almost always gets forgiven and the new bride/husband doesn't get deported.

But this is for people who are still in the US and filing AOS because of their marriage, not people with previous overstays and bans who are filing K1 or I130 from abroad.
posted by ROU_Xenophobe at 7:16 PM on December 11, 2007

As usual, I'd have to second ROU_X, a change of intent and an overstay that eventually marries is in a lot better shape than unauthorized employment.
posted by Pollomacho at 5:19 AM on December 14, 2007

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