AOS denied

My fiance came here as a K1 visa, he did not marry because his fiance left him with another man,they had a son and her ex-fiance took their son without saying anything to him, he was so depressed and never came back to his home country.He has a pending family based petition though, so when his priority date became current he decided to adjust his status, he's been here a few years, he went on an interview and they didn't say if he's denied or approved because his case is a bit complicated, when the letter came its said that under Section 245(d) of the INA he is eligible to adjust his status cause he's a beneficiary of a family based petition, then on the next page it said that he was denied because he was ineligible because he came here as a K1 visa, he haven't filed his motion to reopen because we are seeking advices from different attorneys,any advice from you would be greatly appreciated



Phil's picture

Limitations on Adjustment of Status for Those Who Enter on K1

Thank you for posting this interesting question. This is a tough case. The USCIS decision sounds confusing but I think I know why the case was denied and what the problem is.

When your fiance entered the USCIS on a K1 visa he was admitted for a period of 90 days for the purpose of marrying the U.S. Citizen petitioner. When that marriage did not occur within 90 days his lawful status in the U.S. ended. At this point he was "out of status." With some exceptions, persons who are not in status do not qualify for adjustment of status. The primary exception to this rule is that immediate relatives of U.S. Citizens (spouses, children (unmarried and under 21) or parents can adjust status even if they are out of status. Thus, unless your fiance is the immediate relative of the petitioner in the I-130 he would not qualify for adjustment of status.

There is another provision of law that provides that those who entered the U.S. in K1 status can only apply for adjustment of status based on a marriage to the U.S. Citizen K1 petition. While this could also be an issue in this case, I believe your fiance would have qualified for adjustment of status based on the approved I-130 had it been filed before his K1 status expired.

Based on the information you have provided it does not appear that your fiance qualifies for adjustment of status so I think you want have much luck with a motion to reopen/reconsider. It is likely that his only option at this point is to leave the U.S. and apply for an immigrant visa in his country based on the approved I-130. However, if he has been in the U.S. more than 180 or 365 days past the 90 day status of his K1 visa he will be barred from applying for his visa for 3 or 10 years, respectively. There are waivers available for these bars which he may or may not qualify for.

He is in a tough spot now but it could get worse if he does not leave the U.S. before he is placed in removal proceedings.

Your fiance really needs to hire an attorney to conduct a complete evaluation of his case and tell him what his options are before things get any worse.

Feel free to email me directly if you would like to discuss retaining me for a consultation.

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