K1/Change of Status question...

[Mazamajoe]

I am trying to find some information on the K1 visa process... my fiance is in Seattle, with an approved K1. We plan on marrying here shortly, likely December 2nd.

Once married, we leave to go back to Germany for the birth of our daughter (as my Wife has family there, etc.).

Then we are planning our ceremony/wedding August 3rd in Portugal.

My question is, once we are married in the US on December 2nd, should we wait to file for the change of status until after the wedding? Is that possible? I was told you couldn't leave the country while you wait on the change of status/green card, which would seriously hamper our pregnancy and wedding plans. Or is that not true? Can we file for change of status and still go to Germany for the birth of our child, and still plan on our wedding in Portugal in August?

Thanks for the help,
Joe

[inadmissible]

Change of status if for people within the United States. It will take at least 4 months after she applies for it to get travel privileges ("advanced parole"). Given your plans, your fiance will likely opt to get her immigrant visa from a US consulate at home. That process takes about a year

[newacct]

By the way it's "Adjustment of Status", not "Change of Status". "Change of Status" refers to the process of changing from one nonimmigrant status to another nonimmigrant status. "Adjustment of Status" is the process of getting permanent residency from inside the US.

When you say "with an approved K1", do you mean she is in K1 status? i.e. she last entered the US on a K1 visa?

[Mazamajoe]

By the way it's "Adjustment of Status", not "Change of Status". "Change of Status" refers to the process of changing from one nonimmigrant status to another nonimmigrant status. "Adjustment of Status" is the process of getting permanent residency from inside the US.

When you say "with an approved K1", do you mean she is in K1 status? i.e. she last entered the US on a K1 visa?

Yes, she is in the US on her K1 visa. Can we file for an adjustment of status after our August 3rd wedding in Portugal? As we leave December 19th for Germany, and she is staying until Mid-March to have baby there then fly back to Seattle with me.

[newacct]

Yes, she is in the US on her K1 visa. Can we file for an adjustment of status after our August 3rd wedding in Portugal? As we leave December 19th for Germany, and she is staying until Mid-March to have baby there then fly back to Seattle with me.

No.

First of all, Adjustment of Status is the process of getting permanent residency from inside the US, and thus can only be filed from the US. To apply from abroad, she would go through Consular Processing.

Furthermore, the whole point of her going the K1 route is to file Adjustment of Status during that stay. When she files Adjustment of Status based on entering on K1 and marrying within 90 days, she can file based on the approved I-129F petition and doesn't need you to file an I-130 petition.

If after marrying she leaves the US without filing Adjustment of Status, or abandons Adjustment of Status by leaving the US with AOS pending without Advance Parole, she will have to be petitioned from scratch as a spouse by you filing an I-130 (which requires more cost and providing lots of evidence of the relationship again), and the whole K1 process would have been a waste (if she just wanted to marry in the US and then leave, a visitor visa would have been perfectly fine for that). She will likely have to do Consular Processing abroad because she has no way of returning to the US (she will almost certainly be denied entry on a visitor visa or most types of nonimmigrant visa due to immigrant intent). Even in the unlikely case that she somehow makes it back into the US, she would still need I-130 to be filed with I-485.

[Mazamajoe]

No.

First of all, Adjustment of Status is the process of getting permanent residency from inside the US, and thus can only be filed from the US. To apply from abroad, she would go through Consular Processing.

Furthermore, the whole point of her going the K1 route is to file Adjustment of Status during that stay. When she files Adjustment of Status based on entering on K1 and marrying within 90 days, she can file based on the approved I-129F petition and doesn't need you to file an I-130 petition.

If after marrying she leaves the US without filing Adjustment of Status, or abandons Adjustment of Status by leaving the US with AOS pending without Advance Parole, she will have to be petitioned from scratch as a spouse by you filing an I-130 (which requires more cost and providing lots of evidence of the relationship again), and the whole K1 process would have been a waste (if she just wanted to marry in the US and then leave, a visitor visa would have been perfectly fine for that). She will likely have to do Consular Processing abroad because she has no way of returning to the US (she will almost certainly be denied entry on a visitor visa or most types of nonimmigrant visa due to immigrant intent). Even in the unlikely case that she somehow makes it back into the US, she would still need I-130 to be filed with I-485.

So, if we fly to Germany on December 19th to have our child in Germany, she won't be allowed re-entry into the US? And if we file for adjustment of status now, she cannot leave... so basically if we want to have our child in Germany we'll have to start all over... if we file for Advance Parole will that allow us to travel to Germany and come by while the adjustment of status is pending?

[newacct]

So, if we fly to Germany on December 19th to have our child in Germany, she won't be allowed re-entry into the US?

Basically. She almost certainly won't be able to enter as a visitor. Unless she has an H or L work visa (which are not subject to immigrant intent), she basically has no way to enter.

if we file for Advance Parole will that allow us to travel to Germany and come by while the adjustment of status is pending?

Yes once she gets Advance Parole, yes. It takes 4+ months to get Advance Parole these days.

[Mazamajoe]

Basically. She almost certainly won't be able to enter as a visitor. Unless she has an H or L work visa (which are not subject to immigrant intent), she basically has no way to enter.


Yes once she gets Advance Parole, yes. It takes 4+ months to get Advance Parole these days.

Thank you for all of the help, still trying to figure this out. All of this makes sense, but the K1 visa in her passport says it expires March 25, 2018. That being said, if we still married in Seattle on December 2nd, could we travel to Germany for the birth, return to Seattle, then file for adjustment of status in March?

Thank again,
Joe

[scientist2016]

Thank you for all of the help, still trying to figure this out. All of this makes sense, but the K1 visa in her passport says it expires March 25, 2018. That being said, if we still married in Seattle on December 2nd, could we travel to Germany for the birth, return to Seattle, then file for adjustment of status in March?

Thank again,
Joe

A visa is only for entry purposes. So, she can enter the US anytime upto the 25th March, 2018. But once she enters the US, she has to get married within 90 days or else the K1 becomes invalid. As, newacct mentioned, after marriage, you can leave the US if and only if you file AOS, apply for AP and granted AP. Or else, you will have to start all over again.

[Mazamajoe]

A visa is only for entry purposes. So, she can enter the US anytime upto the 25th March, 2018. But once she enters the US, she has to get married within 90 days or else the K1 becomes invalid. As, newacct mentioned, after marriage, you can leave the US if and only if you file AOS, apply for AP and granted AP. Or else, you will have to start all over again.

That makes sense, but if I am following correctly - she should be able to enter in March then?

The sequence of events up until now:

K1 visa granted October 5th, 2017
Came back to US October 14th, 2017
Marrying in US December 2nd, 2017
Traveling back to Germany December 19th, 2017
Returning to Seattle March 15th, 2018
File for AoS/AP - and hope to recieve before wedding in Portugal August 3rd 2018

Again, her K1 visa issue date was October 5th, 2017 - and it expires March 25th, 2018... so in theory we'll still be able to travel back into the country March 15th, and complete the paperwork?

Thanks again... my mind is going to explode, so many things going on at once! I thought just having a baby was enough to worry about

Joe

[newacct]

Thank you for all of the help, still trying to figure this out. All of this makes sense, but the K1 visa in her passport says it expires March 25, 2018. That being said, if we still married in Seattle on December 2nd, could we travel to Germany for the birth, return to Seattle, then file for adjustment of status in March?

Thank again,
Joe

K1 is a single-use visa. It became void immediately after she entered. (Also, someone who is married cannot enter on K1.)