If You Fail to Get a K1 in 90 Days Can You Try Again

• Introduction
• Statutory and Regulatory Background
• The xc-Day Limit
• Untimely Matrimony Between K1 Petitioner and Beneficiary
  • 5th Circuit and Eleventh Circuit Rule
  • INS/DHS Guidance
• What Is the Situation Today?
• Conclusion

Introduction

The K1 nonimmigrant visa allows U.South. citizens to petition for a fiancée to enter the United States in order to conclude a valid union. The petitioner and the K1 casher are required to conclude a valid marriage within xc days of the K1 casher's admission, later on which the K1 casher and any K2 derivatives may have their status adjusted to that of an alien lawfully admitted for permanent residence with conditions. In this article, we volition examine what options a U.South. citizen petitioner and his or her spouse accept available in the issue of an untimely marriage outside the 90-twenty-four hours timeframe allotted by statute.

Statutory and Regulatory Background

A U.S. denizen may petition for his or her alien fiancée to be admitted into the United States for purpose of final a valid spousal relationship. INA 101(a)(15)(Grand)(i). The marriage between the petitioner and the K1 casher must be concluded inside 90 days. Id. K1 and K2 aliens are categorically ineligible for an extension of stay. viii CFR 214.1(c)(iii)(4). Afterward the matrimony between the petitioner and the beneficiary is concluded, the beneficiary may learn conditional permanent resident status. INA 101(a)(15)(K)(2); viii CFR 214.two(k)(5).

The K1 beneficiary may only adjust to lawful permanent resident condition under section 245 on the basis of his or her marriage to the U.Southward. denizen petitioner. INA 245(d); 8 CFR 245(c)(6). The implementing regulations for the aligning limitations go further than the statute to the extent that they make express reference to the 90-solar day limit to marry and provide specifically that a K1 nonimmigrant and whatever K2 derivatives may only adjust "based upon the marriage of the K-1 fiancée(due east) which was contracted inside 90 days of entry with the United States denizen who filed a petition on behalf of the Thou-ane fiancée…" (Emphasis added.)

The ability of K2 derivatives to adjust status depends on the ability of the K1 primary to adjust status.

The 90-Day Limit

Neither the K1 statutes nor their implementing regulations provide for any exception from the requirement that the U.Southward. citizen petitioner and the K1 beneficiary must lawfully conclude a valid wedlock within xc days of the beneficiary'southward access to the United States. Thus, the K1 beneficiary's presence in the U.s.a. becomes unlawful if he or she has not married the petitioner within ninety days. The statute and regulations are clear that a K1 casher cannot conform status on whatever ground other than spousal relationship to the petitioner. In the normal case, the K1 casher would accept to depart the Us before after applying for admission on a dissimilar footing.

The statutes and regulations leave open an interesting question: What happens if the K1 casher remains in the US and so marries the petitioner more than than xc days subsequently admission equally a K1 fiancée(due east)? Because the vast majority of K1 beneficiaries either marry the petitioner within 90 days and adjust status or depart after non last a marriage with the petitioner, this scenario is very uncommon. For that reason, the Department of Homeland Security (DHS) has not addressed the question decisively. Below, nosotros volition examine the limited guidance on options for K1 beneficiaries and petitioners who conclude a marriage more than than 90 days afterward the admission of the K1.

Untimely Union Between K1 Petitioner and Beneficiary

The question of marriages between the K1 petitioner and beneficiary exterior of 90 days has been addressed both by the United States Court of Appeals for the Fifth Circuit and by the former Clearing and Naturalization Service (INS). We will begin with the Fifth Circuit rule, established in 1981, then examine INS guidance and rulemaking on the issue from 1991 and 1996. We will conclude by examining the differences between the Fifth Excursion rule and INS guidance, and where each adheres.

Fifth Excursion and Eleventh Circuit Rule

The United States Court of Appeals for the Fifth Excursion — which has jurisdiction over Texas, Louisiana, and Mississippi [see article] — confronted the question of what happens when a K1 petitioner and beneficiary conclude a wedlock more than 90 days after the beneficiary'southward admission in a 1991 conclusion. Moss v. Clearing and Naturalization Service, 651 F.2d 1091 (fifth Cir. 1981) [PDF version]. At the time Moss was published, the 5th Excursion also had jurisdiction over the states at present covered by the The states Court of Appeals for the Eleventh Circuit — Alabama, Florida, and Georgia. Appropriately, Moss is besides precedential in those states. Bonner v. Urban center of Prichard, Alabama, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) [PDF version].

In Moss, the petitioner and beneficiary (Moss) married 92 days after the casher's entry into the United States. A child was born of the union. The beneficiary's married man left her two months after the marriage — but the government did not contest the bona fides of the wedlock.

The INS initiated displacement proceedings against Moss, arguing that she was deportable for having failed to comply with the statutory requirement that she ally the petitioner within xc days of admission. Moss argued that she had substantially complied with the requirement that she ally the petitioner inside 90 days, and that the marriage had taken place two days across the limit was due to circumstances beyond her control. She argued that the pertinent event was the intent of the statute, and thus that the statute should be read as providing for tolling the ninety-day limit on account of circumstances across the conflicting's control. The Board of Immigration Appeals (BIA) had rejected this argument, taking the position that the relevant statutes made no provision for tolling the ninety-mean solar day time period.

The Fifth Circuit would side with Moss. It cited to a decision of the Us Court of Appeals for the Ninth Circuit on a different issue involving K visas, wherein the Ninth Circuit held that because the purpose of the K visa provisions was to "facilitate formation of marital relationships," "The relevant inquiry, enunciated in the statute, is whether the parties have a bona fide intent to marry after the conflicting enters." Moss, 651 F.2d at 1093, quoting Menezes v. I.N.South., 601 F.2nd 1028, 1034 (ninth Cir. 1979) [PDF version].¹ Reading the version of INA 214(d) in effect at the time, the Fifth Excursion concluded that the purpose of the 90 day timeframe "is to qualify the intention of the conflicting to soon marry upon entrance into the United States rather than to place an absolute and mandatory catamenia of time inside the marriage ceremony must occur." Moss, 651 F.2d at 1093. Thus, the Fifth Excursion held that "Congress did non intend the ninety-day limit to exist and then rigidly practical that it could non exist tolled when, due to circumstances beyond the alien'southward control, it becomes impossible to formalize the marriage within xc days." Id.

The Fifth Circuit noted the existence of its rule regarding tolling the 90-day timeframe for the K1 beneficiary marrying the petitioner in an unpublished 2011 decision. Shengli Jiang v. Holder, 425 Fed.Appx. 336, 338 (5th Cir. 2011) [PDF version].

INS/DHS Guidance

Then-INS General Counsel James A. Puelo addressed the following question in a legal opinion issued on July 24, 1991: "If the marriage betwixt an alien fiancé or fiancée and a denizen petitioner does non occur until more than 90 days accept elapsed since the alien's admission, is there any ground upon which the conflicting may obtain permanent resident status through adjustment of status?" You may read the General Counsel opinion here: [PDF version].

The General Counsel rejected the Fifth Circuit'south position in Moss that the 90-day timeframe could be tolled, finding that the Fifth Circuit cited to "no authority" in support of its determination: "[West]e conclude that an alien fiancee may not adjust, based on his or her access under sections 101(a)(15)(K) and 214(d), if the alien marries the citizen petitioner more than than 90 days after the alien'southward access."

Despite rejecting the 5th Circuit'south position, the General Counsel concluded that marriage outside the 90-twenty-four hours timeframe "need not exist an insurmountable bar to the conflicting's adjustment." The General Counsel explained the one option available in such cases: "Department 245(d) of the Act … does not clearly foreclose the denizen petitioner from filing a new visa petition on an alien's behalf after the untimely marriage. Blessing of the citizen spouse's conflicting relative petition would qualify the alien spouse equally an 'firsthand relative.'" That is, although the beneficiary would exist unable to pursue adjustment on the ground of his or her access equally a K1, he or she could pursue adjustment on the basis of a new immediate relative petition filed by the same petitioner who filed the K1 petition.

In so doing, the General Counsel recommended a narrow reading of the regulatory provision now codified at 8 CFR 245.i(c)(half-dozen). That provision, as we noted before, bars adjustment applications past aliens admitted in either K1 or K2 condition based on the K1's marriage to the petitioner outside of 90-twenty-four hours timeframe. The General Counsel suggested that this should only apply to adjustment on the basis of the K1 access, and not to adjustment on the basis of an approved Form I-130, Petition for Conflicting Relative, filed past the same U.Southward. denizen.

The Full general Counsel recommended that INS promulgate a new regulation expressly stating that a K1 beneficiary could arrange condition on the ground of a new Form I-130 filed by the U.Due south. denizen petitioner — in the effect that the union was concluded outside the 90-day timeframe. Nevertheless, the General Counsel stated that such a new dominion was not necessary since the existing regulations could be read as not foreclosing the possibility of aligning on the ground of a new Class I-130 filed by the U.South. citizen petitioner. On August twenty, 1996, INS proposed a rule that would expressly immune for a K1 beneficiary to conform on the basis of a new Form I-130 filed by the aforementioned U.S. petitioner [PDF version]. Withal, neither INS nor DHS has published a concluding dominion based on the 1996 proposal.

What Is the Situation Today?

Exterior the jurisdiction of the 5th Excursion (Texas, Louisiana, and Mississippi), or the Eleventh Circuit (Alabama, Florida, and Georgia), there is no publicly bounden policy on United States Citizenship and Immigration Services (USCIS) adjudicators regarding adjustment for K1 beneficiaries who marry their U.S. citizen petitioners exterior of the statutory ninety-24-hour interval timeframe. Every bit the General Counsel noted in 1991, and the INS proposed codifying in 1996, there appears to be no statutory provision prohibiting a K1 beneficiary from adjusting on the basis of a new Form I-130 filed past the same U.S. denizen petitioner after a marriage is concluded more than ninety days after the K1 beneficiary's admission.

Thus, in the case a K1 beneficiary marries the U.S. citizen petitioner exterior the 90-day timeframe in any land other than Texas, Louisiana, or Mississippi, he or she may take two options available:

ane. The U.S. citizen may file a new Form I-130 on behalf of his or her spouse while the spouse remains in the The states, and and so the spouse may seek adjustment on the ground of the Form I-130; or
two. The spouse may depart the United States prior to the U.Due south. citizen filing a new Form I-130 on his or her behalf.

The beginning road carries with information technology certain risks. For instance, a K1 beneficiary may accrue unlawful presence for having failed to marry within the 90-twenty-four hour period timeframe and tin can be subject area to removal from the Usa. Because in that location is no publicly available bounden policy on USCIS, it is also possible that the petition may encounter difficulty in sure cases. Furthermore, a Class I-130 may ever be denied on by and large applicable grounds, for example if USICS has doubts about the legitimacy of the marriage.

Those in Texas, Louisiana, or Mississippi may fence, under Fifth Excursion precedent, that the 90-day timeframe should be tolled due to circumstances across the K1 casher'south control. Those under the jurisdiction of the Eleventh Excursion (Alabama, Florida, and Georgia) may argue that Moss is decision-making in light of the Eleventh Excursion's adopting the case-constabulary of the Fifth Circuit as precedent in its first published decision, three months after the Fifth had published Moss. In order to advance such an argument, the beneficiary would likely accept to show non only that the matrimony was concluded belatedly due to circumstances beyond his or her control, but also that the marriage was concluded every bit shortly equally possible in calorie-free of those circumstances. Withal, information technology is unclear how amenable USCIS would be to these arguments even nether the jurisdiction of the Fifth Circuit or the Eleventh Circuit, and the Fifth Excursion has not articulated a standard for applying Moss. The Eleventh Circuit appears to have never cited to Moss. Thus, petitioners in the 5th Circuit may want to strongly consider filing a new Form I-130 in improver to making an argument nether Moss.

Information technology is important to reiterate that under no circumstance may an alien who was last admitted as a K1 adapt status on the basis of a union to someone other than the K1 petitioner, or on any basis under INA 245(a) other than marriage to the K1 petitioner.

Conclusion

In full general, a K1 petitioner and beneficiary should always legally conclude their marriage inside 90 days (unless they change their mind well-nigh marrying, in which case the K1 beneficiary should depart the United States within 90 days). In add-on to beingness required under statute, terminal the marriage within 90 days avoids the myriad complications that may ascend in the example of a late marriage. K1 petitioners and beneficiaries should remember that obtaining a spousal relationship document is distinct from holding a marriage ceremony and associated celebrations.

Nosotros recognize, however, that there are cases in which the parties may not marry inside ninety days due to unusual circumstances. For example, the General Counsel opinion noted one case where a marriage was delayed due to the decease of a parent. The General Counsel also noted that there was a potential trouble for conflicting fiancés and fiancées of members of the Armed Forces deployed abroad. In these cases, the petitioner and casher should consult with an experienced clearing attorney as soon every bit possible for instance-specific guidance on how to proceed in anticipation of an untimely marriage orafter an untimely marriage has occurred. The best class of activeness will always depend on the facts of a particular case.

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1. Menzes concerned whether the Attorney General was bound to grant a K1 casher's application for adjustment of condition based on his or her having been granted a K1 visa and marrying the petitioner within ninety days. The 9th Circuit ended that the Attorney Full general was not bound to grant the adjustment awarding.

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Source: http://myattorneyusa.com/adjustment-of-status-after-k1-untimely-marriage