Lana: Fiance Visa status question

[evcalyptos]

Hi Lana,
If one enters on a K1, marries within the mandatory 90 days and files AOS, their status is now "pending AOS". Should the marriage fail, the alien must leave; there is no other way of adjusting status or switching to another non-immigrant status without leaving the country.

What would the time between the end of the 90 day K1 status and the departure be? It's not technically overstay or unlawful presence but it must be something.

How would that period of time affect a future non-immigrant option including, but not limited to, a VWP entry?

Thanks for your opinion on this.

 

[ImmigAttyLana]

I would say that there is no requirement to depart the US until a determination is made by the USCIS that the K-1 spouse is no longer eligible for adjustment of status.

 

[evcalyptos]

I would say that there is no requirement to depart the US until a determination is made by the USCIS that the K-1 spouse is no longer eligible for adjustment of status.

Thanks for your reply on this, Lana, and confirming that I know what I thought I knew.

I'll presume that if the alien divorcee wanted to use another non-immigrant option to the US, they would explain the cirumstances to the Consular Officer/Border agent for their discretion.

 

[ImmigAttyLana]

Yes, of course, but given that she has already been here and has filed for permanent residence, unless the new nonimmigrant status this person would be seeking is one that permits dual immigrant intent, there is a good likelihood that she will not get it because of the presumption that her ultimate intent is to immigrate to the US.

 

[evcalyptos]

Yes, of course, but given that she has already been here and has filed for permanent residence, unless the new nonimmigrant status this person would be seeking is one that permits dual immigrant intent, there is a good likelihood that she will not get it because of the presumption that her ultimate intent is to immigrate to the US.

Hmm. That's sorta stinky. There are times when it is the US Citizen who terminates the K1 relationship (and yes, I am asking about a specific person). The alien moved here to be with the USC and does not want to live here. But I'm sure at some time, she would like to use the VWP to visit.

I see 'your' side of it and know the burden is on her to overcome the presumption of immigrant intent. That's why I suppose it would be dealt with at the Consular level (unless using the VWP, and then it would be dealt with at the border/entry IF it came up at all).
Thanks again for your thoughts.