Here is my situation. I am an American citizen and my Brazilian fiance at the time came to the USA on March 3, 2007 on a K1 visa. We didn't get married within the 90 days, but rather at a later time on December 21, 2007. On February 27, 2008, we filed a change of status (I-485) before my wife's I-94 expired on May 1, 2008. We knew that we could not adjust my wife's status because we didn't get married within the 90 days requires by the K1 visa. Instead, we filed the I-485 based my wife's marriage to me, an American citizen. To complicate things further, we filed only the I-485 without the I-130 included. On July 29, 2008, we received a denial letter from USCIS stating that we couldn't adjust my wife's status because she entered the USA on a K1 visa and that we didn't get married within the 90 days window. We consulted with several lawyers and were adviced that we could adjust my wife's status based on her marriage to a United States citizen. We immediately retained a lawyer and filed an I-130. While waiting around, my wife was put into removal hearing with a court date of December 3, 2008. While the judge was sympathetic to our situation and totally believed that we have a bonifide marriage, he informed us that there was no legal ground from which my wife could adjust her status because she was a K1 visa holder and that we didn't get married within the 90 days window. The judge told us that my wife needed to leave the USA before January 17, 2009 to avoid the 3 year ban. My wife returned to Brazil on a voluntary departure order from the court on Juanuary 10, 2009. After going through this whole process, we now know that there was no way to adjust my wife's status because she entered the country on a K1 visa. My wife is having an interview soon and we would like to know the following questions. Has my wife incurred any unlawful presensce in the USA during the time she entered the USA on March 3, 2007 until the time she left on January 10, 2009 that would caused her to to have a 3 year or 10 year ban? Are there any legal issues about my situation that would prevent my wife from getting a CR1 visa, for example her I-94 was about one year and three months long?

We would appreciate any comments or opinions.
Steve & Kelly

Her I-94 from her K-1 entry should have expired on or about June 1, 2007 (based on a March 3rd entry)... At that time she began to accrue "out of status" time until the day she left... If her out of status time was more than 180 days and less than 365 she will incur a 3 yr ban. If more than 365 days then it is a 10 yr ban. From the facts you present it would appear the 10 yr ban has been triggered.....

If the ban is in place, when applying for a visa, she will be denied at interview... You will then have the opportunity to apply for a waiver on the ban. You cannot apply for the waiver before a visa is denied, so it is not possible to jump start the waiver process.


moving thread to the waiver forum... you need to learn as much about the waiver process as possible... it is a long and difficult road

Thank you for your comment. My wife's I-94 expired on May 1, 2008. I am not a lawyer so I can speak with 100% certainty that the I-94 should or should not expired in 90 days. I am simply stating the facts about my case. We went by the date on the I-94. I have a couple of questions. Should my wife be penalized for a mistake on the date stamped by someone else? How can any goverment agency hold my wife accountable for not noticing that mistake, if indeed, the I-94 should only last for 90 days? I would also like to point out that the judge during the removal hearing did not ruled that the I-94 had to expired 90 days after my wife entered the USA. The judge knew that my wife I-94 was 1 year and 3 months long. Any further comments will be appreciated.

You say that her I-94 was dated more than year after her arrival - do you have a copy of that I-94?

You also say that the judge at the court told you that your wife needed to leave before 17 Jan 2009. Do you, by any chance, have some sort of record of that? Were the proceedings done with a court reporter?

regardless if it is May 1, 2008 or June, 2007... in either situation with a January, 2009 departure the facts would support one of the re-entry bans... because the minimum threshold of 180 days was exceeded.

Yes, I do have the photocopy of the I-94. In addition, I have the court order for a voluntary departure where the judge stating his words exactly, "Respondent is departing US prior to her 180 day to AVOID the 3 year ban and immigrate as an immediate relative. Facts of this case are sympathetic. Bonafides of marriage have been established." I have my wife's airplane ticket showing that she arrived in Brazil on January 10, 2009.


The judge based his 180 day count from July 29, 2008, the date my wife was denied the AOS. The judge ruled that my wife was out of status from July 29, 2008.


How much does a court order from a immigration judge affects the decision-making of the US Consulate on a specific case?

Looks like she will get a ban according to INA depending on which one she gets that determines if she will be eligible for a waiver BTW the I-94 has nothing to do with her status..they would have given her a stamp based on the visa class which she entered but it would be up to her to take the proper steps to ensure she maintains legal status while she is present in the US, because you can enter on a K1 and get married within the 90 days and submit AOS but might not get AOS approval until months later....it (I-94) will however prove that she entered the US legally

( B ) ALIENS UNLAWFULLY PRESENT.-

(i) In general.-Any alien (other than an alien lawfully admitted for permanent residence) who-

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e)) prior to the commencement of proceedings under section 235( b )(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, or

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States,is inadmissible.

(ii) Construction of unlawful presence.-For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.

(v) Waiver.-The Attorney General has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien. No court shall have jurisdiction to review a decision or action by the Attorney General regarding a waiver under this clause.




(9) ALIENS PREVISOUSLY Removed.-

(A) Certain aliens previously removed.-

(i) Arriving aliens.-Any alien who has been ordered removed under section 235( b )(1) or at the end of proceedings under section 240 initiated upon the alien's arrival in the United States and who again seeks admission within 5 years of the date of such removal (or within 20 years in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible.

(ii) Other aliens.-Any alien not described in clause (i) who-

(I) has been ordered removed under section 240 or any other provision of law, or

(II) departed the United States while an order of removal was outstanding, and who seeks admission within 10 years of the date of such alien's departure or removal (or within 20 years of such date in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible.

(iii) Exception.-Clauses (i) and (ii) shall not apply to an alien seeking admission within a period if, prior to the date of the alien's reembarkation at a place outside the United States or attempt to be admitted from foreign contiguous territory, the Attorney General has consented to the alien's reapplying for admission.

Hi;

I'd like to share my experience so that you can make an educated decision on your wife’s case. My wife was applying for political asylum. Last year October, she had a hearing in which the asylum was denied. Our attorney reserved the right to appeal the case, but we decided that it would be better if she left the US while I filed the I-130 from here. The I-130 was approved and on the day of our interview we were put on AP (Administrative Processing) which lasted 30 days. Once out of AP we were told by the Embassy that my wife was eligible for the visa, but that we needed to file the waiver I-212 (permission to re-enter the US) with the local USCIS Office in Miami.

We filed that waiver I-212 and two days later received a letter stating that they received it, and that it would take approximately 1-year to process. Obviously, I wasn't about to wait so I took it upon myself to make an INFOPASS with the USCIS Office that was handling the form to see if I could get it expedited. I was lucky enough to find people in that office that helped me get the Expedite Request to the right officer.

Two days after I visited USCIS, I received a package in the mail. I was devastated when I opened it and saw that it was the package that I sent USCIS with the waiver filed I-212. Along with the package was the attached letter. They were stating that I needed to file the I-601 and the I-212 together at the embassy. After extensively researching the issue, I knew that they were mistaken and decided to do another INFOPASS for two days later. I spent three hours talking to three different supervisors and 2 officers. Long story short, I walked out of there with the I-212.

Here's where they made the mistake. They said my wife was out of status for over a year, when in fact, any person who has a current asylum petition on file will not have the time (while the asylum petition is current) count against him or her. This is what you have to remember. When your wife had her hearing, she was (to my knowledge) legally in the US. Therefore, your I-130 will probably be approved but chances are that you will have to file I-212 (permission to re-enter the US). Keep all of your documentation safe. It is the only thing that can prove she still had legal presence when she decided to self deport.

By the way, we didn't hire a lawyer for this process. We did it ourselves and were lucky enough to have my wife’s visa in hand in 8-months from the time I filed the I-130. You need to be prepared for it to be a longer wait than that, but persistence and education pays off. Do not give up just because you find a road block.

Good Luck

There has been posts of people reporting that they didn't get married before the I-94 expired and didn't have any problems when they filed for adjusting status. It certainly isn't a good idea of going past the 90 day limit.

Unfortunately the asylum scenario will not work with your case. We are required to get marry within 90 days, don’t forget you and your fiancée signed a document stating you will get marry within the required time. Also, if you fail to comply the K-1 process/requirements, the person must return to the country of origin. At this point, since you technically violated the rules your fiancée become illegal. Getting married didn't solve the legal status, at least to the immigration department or the USCIS

Now, I am not saying you are out of options because is always an exception to the rule. I have heard other cases where your congressman gets involve in the situation. You need to get familiar with the law, regulation and contract as many knowledgeable people to get the best option for your wife. Before making any wrong moves that might create other problems to your situation.

Hi everyone. I just want to put this question out there for everyone to comment. Given the fact that sole purpose of a K-1 visa is to get married and to do so within 90 days upon arrival, if not, you have to leave the country. Let's assume that I did not get married within the 90 days. When is this date to leave? 91st, 92nd, 100th day? or when the I-94 expired? My wife's I-94 happens to expire 1 year and 3 months after arrival.

IMO - if she left prior to the date the judge mentioned -

Then she'll be ok come time to interview at a consulate.

If she left AFTER that date, then she's got a huge risk of the ban ...

Whilst she was in DEPORTATION HEARING - it is my opinion that she was not DEPORTED - instead - she 'voluntarily departed' the country.

But hei - I'm not a lawyer, nor do I play one on TV - but the differences in those two phrases are bazillion miles apart. As long as she wasn't DEPORTED, she should be ok.

GOING FORWARD, though -- make sure she has copies of ALL of the court documents prior to interview day - she'll probably need to present them.
I'd also pay attention to the EXIT STAMP on her passport - (did she get an exit stamp at the USA Airport? ) - if it has any codes , letters, or numbers on it - ya better cross-reference EXACTLY what they mean.

If there were no codes on the stamp - she has no proof that she was actually DEPORTED.

Good Luck !

This is an accurate statement.

YOU MUST MARRY within 90 days. There is common linkage (cause mostly it's done this way ) that the I-94 expiration date matches the end of the time window to get married. In your wife's case, she got an expiration date that was WAY PAST a 90 day window.

The onus to 'get married' is 'within 90 days of POE date', not 'before I-94 expiration date' .

YOU DO NOT HAVE TO FILE FOR AOS within 90 days of POE date.

Disclaimer - I am not a lawyer, nor do I play one on TV. i can be had, though, for at least 1 KG of COOKED FOOD (frozen is fine ).

I'm not sure that's right. Generally, out of status time does not accrue while a petition is under consideration, so filing the AOS before the I-94 expired and leaving within 180 days after the petition was denied would not trigger a ban. If the immigration judge says there she would not be banned, I think you should not assume there will be one because of advice from VJ.

I do this you need a lawyer - a different lawyer.

Day #90 is the day to leave by. The I-94 date does not trump the K-1 requirements. Just because a mistake was made when the I-94 was issued and dated incorrectly does not alleviate you from the requirement to marry within 90 days (which means before day #90) or else leave.

Exactly right. If anybody is qualified to interpret immigration law as it applies to a particular case, it would be an immigration judge. That is the judge's job, and the judge's word is the authority. I'd trust the judge before I'd trust an immigration attorney or a random VJ poster.

Not only that, but in this case, the judge's judgement is backed up by the Department of State:

http://www.immigrationlinks.com/news/news309.htm

IN GENERAL, ALIENS WHO HAVE A PENDING APPLICATION TO ADJUST STATUS TO PERMANENT RESIDENCE UNDER INA 245 ARE CONSIDERED IN A PERIOD OF AUTHORIZED STAY FOR PURPOSES OF INA 212(A)(9)( ("9B"). THEREFORE, SUCH ALIENS WOULD NOT ACCRUE ANY UNLAWFUL PRESENCE FOR 9B PURPOSES DURING THE PENDENCY OF THE APPLICATION TO ADJUST STATUS.

So as long as the I-485 was filed before the I-94 expired, then even if the I-94 expired, the "180 day" clock wouldn't have started ticking until the adjustment of status application was denied.

Where are you getting this information? Is it your personal opinion or is your opinion based on law? Can you direct me to this law on the internet?

Thank you for all the comments.

To whom are you directing that query?

Anyway, here's yet another reference, direct from the USCIS, that you'll probably want to read in great detail.

http://www.uscis.gov/files/nativedocuments...edesign_AFM.PDF

Note especially example 2 on page 10. It describes a situation very similar to the one you describe, where an alien's I-94 expired, but he filed an application to adjust status. When the I-94 expires, he begins a period of unlawful status, but there is no period of unlawful presence for the purpose of the 9B bars while the application for adjustment of status is pending.

THANK YOU very very very much LUCYRICH....

I think, some are making more difficult for you: rather then help. I am sorry to say that. Law is Law, but judge paper will count and he has power in court and on the paper what he/she said will help you.

Phil, I totally agree with you. Even if there was a mistake on the I-94 you as the individual knew that you have to get married within 90 days. I believe you knew it was a mistake but you tried to you it to your advantage, but obviously it backed fired on your part. Good luck

CARAMEL, What advantages are you talking about? We were awared of the 90 day policy. This is life and sometimes things dont worked out as you planned.

To answer the question originally asked, your wife must say YES. She did remain illegally after the 90-day K-1 time frame expired. The I-94 has nothing to do with legal presence; it merely proves in her passport that she entered the U.S. legally and was checked out. I suspect no lawyer can help you around this situation.

At the interview, which we hope you will attend with her to provide moral support and explanations if asked) a court-certified copy of the judge's order should be presented. If she is denied her visa, then you can apply for the waiver as mentioned earlier.

As to the I-130 now in process, we hope you did not withhold or otherwise cover up any of the relevant facts. Anyway, it is now irrelevant. Right or wrong, the law is the law and the consulate has no choice but to abide by it.

Good luck!

This case is rather unusual, so I doubt that anyone can make a judgement call with any degree of certainty. So we are all uttering our opinions, and hopefully that will provide some kind of feedback to the OP.

First of all, adjustment of status based on the marriage to a USC via I-130 and I-485 is very common, at which time the overstay will be forgiven, provided that the beneficiary entered the country with a visa to begin with, meaning not EWI. That's the case here, as a K-1 is a valid visa.
It beats me that they denied the AOS.

More importantly, a US immigration judge ruled that if the OP's wife leaves the country by a certain date via VD, she would avoid the 3-year ban. The judge furthermore ruled that the bona fide qualifier of the marriage has been established.
This is a very powerful document, which makes me believe that it should be sufficient to get a spousal visa in Brazil.

What in the immigration world can trump the ruling of an immigration judge?

tough situation. good luck it will be interesting to see how it all pans out.

AOS was denied because no I-130 was filed. After the 90 days K-1 period expired, there's no basis for adjustment of status without an I-130. That was an unfortunate mistake.



Exactly.

Not a good idea?! It's illegal. The K1 conditions say that the beneficiary MUST get married within 90 days, or return home.

You like sugar coating, but I'm on a sugar-free diet, so I wont take it.

Peace.

After reading all this I just wonder why you people don't get married within the timelimit given to you. It would've saved you a lot of trouble.....

Just exactly where is the condition "or return home" specified? Can you give a reference?
The requirement is that to adjust status based on the K-1 entry, you must get married to the original petitioner within 90 days. If you marry outside the 90 days, you cannot adjust status based on the K-1 entry, but you can adjust status as the immediate family member of your USC spouse by submitting the I-130 with the I-485. The immediate relative petition is then the basis for adjustment.

I suppose it would be more accurate to say you MUST get married within 90 days and adjust status based on the K-1 entry OR get married after the 90 days and submit the I-130 along with the adjustment OR go home.... OR be out of status

I totally agree with you. One point I would like to make. The judge ruled that because my wife came into the US on the K-1 visa, this is particular visa doesn't allowed her to adjust her status just because she married to a USC. Had she came in with any other visas, she would been able to adjust her status based her marriage to a USC by filing an I-485 and I-130. This is our understanding from the judge. K-1 is very restrictive.

What is going to make or break my wife's interview is whether the US consulate is going to agree with the judge's ruling that my wife did not stayed beyond the 180 days, which means that the government has to accept the mistake with the I-94 being valid for 15 months instead of the normal 3 months. The key is the expiration date on the I-94. Who should accept responsibility for the error on the I-94 is what I want to know? Please reply.

Hi everyone. The K-1 visa is just a very ridiculous visa because it gives you no option to adjust outside the 90 days. It doesn't matter if you are married with the USC. Unless you have a really strong excuse such as a medical reason to not make it to your wedding, you may be able to get a waiver. Outside of that, you are SOL!

Actually, the K-1 visa is very good for what it is designed to do - allow entry for the beneficiary in order to get married to the US citizen and apply to adjust status as long as the conditions of the K-1 visa have been met. That condition is to get married within 90 days. If you do not get married within the 90 days, then you have violated the terms of the visa and are no longer able to get the benefit conferred by that visa. If that happens, however, the beneficiary's status can be adjusted from 'out of status' as the spouse of a US citizen by filing an I-130 petition at the same time as the I-485. Basically, the I-130 is 'approved' first - giving a basis upon which the AOS can be approved - an approved petition for the spouse/family member of a US citizen. The I-130 has to be submitted with the AOS as they are linked, but it needs to be approved first before the I-485 otherwise there is no valid 'status' for the beneficiary.

It is always best to think of the K-1 as part one of a two step process and part two - the AOS -is dependent upon fully satisfying the conditions of part one - the K-1 visa. If you don't fulfill the condition of the visa, you don't get the immigration benefit tied to it. It is not a ridiculous visa - it is very clear on what is required and you have only yourself to blame if you did not satisfy the terms of the visa. The really unfortunate part is that while you were no longer eligible to adjust status based on the K-1, you could have adjusted status based upon an approved petition as an immediate family member of a US citizen - if you had filed the petition requesting this. You didn't, thus there was no other option but for USCIS to deny the AOS.

You are mistaken... there is a path to legal status for a K-1 if you marry outside the 90 days.... it requires both the I-130 and the I-485... unfortunately in your situation you missed the I-130, had you done this you would not be in your current situation... it was an unfortunate misstep ...

Could you please direct us to a website where this immigration law specifically states that a K-1 entry the got married after the 90 days to USC and is allowed to adjust status by filing an I-485 and I-130 together?

If that is the case, then why the judge didnt allow me to do that? We consulted with 6 immigrantion lawyers and the D.C. area and non of them told us about this option. Our lawyer is one of the top immigration law firm in the area and she is the partner of the firm with 30 years experience.

I will look for the reference...

FWIW, the judge could not allow you to re-file because once you filed the I-485 (without the benefit of the I-130) you placed yourself in a path that was unrecoverable, because in order to recover, a decision was needed on the original I-485. The only decision available was a denial, and once a denial decision is rendered on an I-485, the law requires the alien to immediately be put in removal proceedings. Once you are in removal proceedings you are barred from re-filing.


ETA:
While not an official INA reference... look at the bottom of the page. I know similar language exists (or has existed) on the USCIS website.

Important: If you married the U.S. citizen but not within the 90-day time limit, your spouse must now file USCIS Form I-130, Petition for Alien Relative.

http://usimmigration.visapro.com/Adjustment-of-Status.asp

Thank-you very much... The website is very good and clear!

I'm slightly stumped here. I am very confident that adjustment is possible even if the marriage happened after 90 days, but such adjustment requires an I-130 in addition to the I-485. I've seen that on many attorneys' sites, and I've heard many reports of it being done.

But I can't find an official USCIS document that says it is doable, nor do I find an official law or regulation that explicitly allows it. In fact, it looks to me like it's disallowed by 8 CFR, but I don't trust my reading as much as I trust the numerous reports I've heard of it happening.

INA 245(d) says: The Attorney General may not adjust, under subsection (a), the status of a nonimmigrant alien described in section 101(a)(15)(K) 2aa/ except to that of an alien lawfully admitted to the United States on a conditional basis under section 216 as a result of the marriage of the nonimmigrant (or, in the case of a minor child, the parent) to the citizen who filed the petition to accord that alien's nonimmigrant status under section 101(a)(15)(K) . . That says that a K-1 can't adjust except on the basis of marriage to the original petitioner, but it doesn't place a 90 day time limit on when the marriage has to happen.

8 CFR 245.1©(6) says: The following categories of aliens are ineligible to apply for adjustment of status to that of a lawful permanent resident alien under section 245 of the Act: ... Any alien admitted to the United States as a nonimmigrant defined in section 101(a)(15)(K) of the Act, unless: (i) In the case of a K-1 fiance(e) under section 101(a)(15)(K)(i) of the Act or the K-2 child of a fiance(e) under section 101(a)(15)(K)(iii) of the Act, the alien is applying for adjustment of status based upon the marriage of the K-1 fiance(e) which was contracted within 90 days of entry with the United States citizen who filed a petition on behalf of the K-1 fiance(e) pursuant to § 214.2(k) of this chapter;

That says that a K-1 visa holder is ineligible to adjust status unless it's via a marriage to the original petitioner that happened within 90 days of entry. But that's not statute, it's regulation.


I'm reminded of the quote "The law doesn't say what it says, it says what the courts say it says". There's probably some case law, or some conflicting statute or regulation, or other practice that overrides the text I found in 8 CFR. It's dangerous to be too literal in reading one part of the regulations in isolation.

Wow. 8 pages of argument.

Please note that visapro DID NOT SAY that you were eligible to file the I-130 AND adjust status from within the United States. It said



meaning consular processing. . .

That point is moot though. Now, the OP has to deal with having left the US after an overstay. No matter what the I-94 says, the overstay started at 90 days after admission since the couple was not married in that time period. 180 days after that a ban was incurred.

At that point, on or about December 01, 2007, there was a 3 yr ban waiveable by an I-601. This was before they even got married. No statement by an immigration judge can change that unless he had allowed an in-country filing, which he also conceded was beyond his power.

The OP needs to consult with A GOOD ATTORNEY asap, try Heather Poole or Laurel Scott or one of their associates. They both have experience with Brazil and will be able to give you a quick answer about the necessity of a waiver. Also start doing research about the I-601. www.immigrate2us.net is a good place to start.

does not automatically mean consular processing... there are a handful ofl members on VJ in the past, who accidentally married outside the 90 days, and have adjusted status as has been explained, SUCCESSFULLY

She is now living in Brazil. Therefore she must go through the consulate which means they must file for a visa and overcome the bar.

"Accidentally" does not usually imply nine months later. . . .

This is a reply to Payxibka, emt103c, lucyrich, and anyone who left a reply.

You all have made very strong points. I don't know what the correct interpretation of the law is for my situation. How would your opinion changed if I were to tell you that at the removal hearing the judge wrote in the court order that my wife did not violate the 180 day rule? This judge was not any judge. He was and is the Chief Judge of the Baltimore immigration court in Maryland. Here's his exact words, "Respondent is deporting US prior to her 180 day to AVOID the 3 year ban and immigrate as an immediate relative."

Further feedbacks will be greatly appreciated.

I would say he went by the I-94 and that you need to ask one of the attorneys that I recommended or one that is equally as experienced. From my reading (I'm not an attorney) the overstay started as soon as the 90 days was up and the bar was incurred upon exit from the U.S. He was counting from the erroneous I-94 markings not from the visa entry date. As far as I know, Consular officers must follow the law as written.

outside the 90 day period is outside the 90 day period whether 1 day or 100 days or 1000 days...

An alien may be eligible to apply for status adjustment if they are an immediate relative of a USC and as long as they enterd the country LEGALLY... A legal entry is evidenced by an I-94. A spouse is an immediate relative of a USC.... As long as the K-1 entrant married the original petitioner then they have a path and can adjust. The process is accomplished by an I-130 petition & I-485. Other than the required marriage to the original petition, this process is no different than an alien who entered on a B-2, J-1, VWP, etc...

Considering that waiver applications are adjudicated by USCIS and not DOS, I would think that an immigration judge's finding that no ban was incurred will carry significant weight at the consulate.

I think the issue about the 180 days for your case is clear. The judge interpreted the law, and gave a decision that is completely consistent with the law. The Adjudicator's Field Manual chapter 40.9.2 gives explicit guidance as to what constitutes "unlawful presence" for the purposes of INA 212 a9B, and the judge's ruling agrees with that. Unlawful presence cannot be accrued while an I-485 is pending; it doesn't start until the I-485 is denied. Besides, where there is an issue of law, the ruling of the judge who has jurisdiction IS the authority, more so than mine, yours, an attorney's, a consular officer's, or anyone else's (except an appeals court with proper jurisdiction).

Some of us have gotten into a side discussion about the possibility of a K-1 entrant adjusting status based on a marriage that happened more than 90 days after entry. While I believe that is possible if the I-130 and I-485 are filed together, I believe that is now irrelevant to your current case, because you are past that point. I apologize if that digression distracted from the discussion of your particular case.

Like the judge, I don't see any problem or issue with proceeding to file an I-130 and getting an immigrant visa abroad. In particular the 212(a) 9B bar won't be an issue as long as she departed before the judge said she had to depart.

Let us know what the attorney says please or what the consulate rules.

The 485 wasn't even filed until there was already an overstay of greater than 180 days.

You continue to insist that this is the case, but the immigration judge with jurisdiction over the case said differently.

We are soooooo confused and so lost! We will talk to some more lawyers and we will post any updates.

All that matters really at this point is what USCIS shows in their computer.

I really don't see what the problem is other than the issue of whether a waiver will have to be filed or not and that will be discussed at the interview.

I agree the Judge's Order carries a lot of weight and is a point to argue from but Judge's have been know to make errors and they cannot override the law.

I think before losing anymore sleep over this go to the interview and proceed from there.

Side remark. If you had married within 90 days, total cost about $20-$100 you would not be in this situation now.