Our K-1 visa looks like it will be denied because I was 17 when filing. My fiancé is with me in the US now, his ESTA runs out on August 25th. His intention was to return to the U.K. when the petition was approved, but that probably won’t happen. We are aware of the new 90 rule where we cannot file or marry within 90 days of him entering the US. It’s possible USCIS won’t notify us of the denial until after he has to leave, so we are thinking of getting married and filing AOS instead. Is marrying and filing, for example, on the 91st day of his stay legal? Since he would be out of his ESTA would this be doing anything illegal? If it’s okay to do, how do we show dates and that we’re going by the book?
A US citizen sponsored person admitted on ESTA may file for a green card along with the spousal petition.
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It’s risky to do what you’re suggesting. Although it sounds as though his intent upon entering was to return and wait for the processing of the K-1, there are still big problems with this approach. You would benefit from a consultation with an immigration attorney to evaluate the situation and provide you with some options and explain the consequences of each approach. Besides, if you marry on day 91, you’re still 17, right? If you can legally marry at 17 in your state, you may still be eligible for K1.
If he stays here, having come on Esta, he is not entitled to immigration procedures that someone on a B visa can get, and is subject to expedited removal (deportation). There are other options as well, including waiting until you’re 18 and re-filing, or marrying and he returns home before his ESTA expiration and you submit a consular process petition for him, though it would be very hard to demonstrate a bona fide marriage when living apart.
Also, given your age, I’m wondering whether you qualify for the income requirements to sponsor an immigrant. Really, the best thing you can do is sit down with an immigration attorney.
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Yes, if your fiance entered with an intent to return to his home country once the K-1 is approved and proceed with the fiance petition, but then spontaneously changed his mind because you realized that the K-1 will be denied you can marry and apply for AOS so that to avoid a lengthy separation.
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