If you entered the United States on a K-1 (fiancé) visa but that visa has expired, and you believe you may have a case for political asylum, the main things to consider are:
- whether you could still get a green card through the marriage that you'd planned with a U.S. citizen, and
- whether you, in fact, have a case for political asylum.
Either a marriage-based green card application or an asylum application might yet offer you a way to obtain lawful permanent resident status (a green card) in the United States.
Late Marriage to U.S. Citizen After Entry on a Fiance Visa
A K-1 visa requires a couple to marry within 90 days of the fiancé’s arrival in the United States, after which the immigrant can apply to adjust status (get a green card). Sometimes circumstances may, however, make it impossible for the marriage to take place within that 90-day period. If the relationship fell apart, of course, there is no hope for continuing on with the green card application
If the marriage went forward as planned, however, even if it took place after the 90-day period of the K-1 visa, then U.S. citizen can in essence restart the process by filing a Form I-130, Petition for Alien Relative with U.S. Citizenship and Immigration Services (USCIS), combined with the immigrant's adjustment of status application (Form I-485 and supporting documents, including the marriage certificate).
Note that it's important to submit these two portions of the application process simultaneously. If the U.S. spouse simply submits the I-130 and then waits for a reply from USCIS before the immigrant applies to adjust status, the immigrant will continue to have no legal right to remain in the United States. Only by filing an adjustment of status application does the immigrant's status become lawful. In fact, the immigrant can apply for a work permit (EAD) at this point.
Only people who marry the citizen who originally filed the K-1 visa on their behalf can adjust status on the basis of marriage. You will not qualify for the status adjustment if you married someone else -- though you can return home and have your new spouse file a visa petition (I-130) on your behalf, and then enter the U.S. via consular processing. Beware, however, of the time bars for unlawful presence if you overstayed your fiance visa by 180 days or more. For information on this problem, see "What Are the Three- and Ten-Year Time Bars for Unlawful Presence?"
Applying for Political Asylum
If you did not marry the person who applied for your K-1 Visa or your adjustment of status application was denied you may be able to apply for asylum to remain in the country. How and where you do this depends on your current situation. If you are already in removal (immigration court) proceedings, then you'll need to present your asylum application to a judge. If not, you may be able to mail your application to USCIS and then await an administrative interview. If your case isn't granted at that interview, it will be referred to immigration court for hearing by a judge.
To apply for asylum, you must have experienced past persecution in your home country, or fear future persecution there, based on your race, religion, nationality, political opinion, or membership in a particular social group. For details on eligibility and the application process, see "U.S. Asylum or Refugee Status."
Obtaining Legal Advice
If you or your spouse came into the country on a visa that has expired, your best bet is to speak to an immigration attorney in order to strategize how to stay in the United States legally. It is especially important to speak to an attorney if there are complications in your case, such as marriage to someone who wasn't your original visa petitioner, or a visa overstay of six months or more.
