I browsed through the guides here but could not get this information.

I am trying to find out what is the typical duration of the K1 visa or typically
what is stamped at the POE when arriving on K1 visa? is it like other routine
visitor visa - 6 months duration?

Basically I am trying to ascertain how much time I would have to marry
and file an AOS. Marriage needs to be prior to 90 day period is over; does
this mean that AOS has to be filed prior to 90 day period also?

SEE Duplicate: http://www.visajourney.com/forums/index.php?showtopic=77271

yes I posted here also, since some folks here have gone through the process
so wanted to get first hand information

You mention in other post that some people get delayed in collecting
all paperwork for AOS and end up filing after 90 days. Is that legit then?
Because the visa is over and the finacee is out of status? What is done
in this situation?

No. AOS can be filed any time after marriage. Many people wait for several months for what ever reasons without consequences. It is best if you do not wait too long (might be hard to explain at an interview why you waited two years to file), but don't get all worried that you have to file within that same 90 day period.

First, the visa is stamped with a 90 day expiration at POE. Thereby indicating that she/he will be out of status in 90 days. You should insure that the marriage occurs within the 90 day period.

Many seem to delay filing for AOS, i.e. permanent status for some time after the marriage and the 90 days has passed. My question is why wait? You need to do this anyway and the sooner the better. I truly believe that the USCIS employees like to see people that are following the letter of the law and will make sure it goes well for them. The adjustment of status is much smoother than the K-1 application process. There are horror stories from some but most people don't have much problem adjusting status. Once the green card is issued, everything is easier.

You have a permanent spouse who can work legally and both of you can leave and return to America.

The I-94 is stamped with a 90 day expiration at the POE

I don't think that filing for AOS after 90 days after entry to the US fails to comply with the letter of the law. Being married within 90 days is the key. Our AOS (based on K-1) was filed more than a year after the 90 days elapsed, and it wasn't an issue.

Even if you marry later, you can still file an I-130 along with the AOS, and you should still be fine.

In general though, it would be best to have everything ready and mail it within a few days of your wedding.

Exactly, because the law also states that marriage to a US citizen assuming you entered with inspection will forgive all prior overstays and unauthorized work. Thus making the 90 day issue mute. Marrying before 90 days offers the nice advantage of avoiding paying more money for an I-130. And filing for AOS ASAP speeds up the process of getting a work permit, property travel document (for entry back into the US), avoiding potential deportation issues, green card, and ultimately citizenship. For those whom these are not big concerns, the date of filing is truly irrelevant.

Also, once married, the K-1 is technically "void" and the alien is out of status. (I'm surprised you didn't jump on this one, Satellite!) They are, however, allowed to stay by decree of the Attorney General because they're married to a U.S. citizen. (Still right, so far?)

They kind of fall into a "limbo" status at this time because the K-1 is set up specifically for the purpose of coming to the U.S. as a non-immigrant that becomes an immigrant within 90 days. It's further complicated when it comes to stuff like applying for Social Security cards, State IDs, taxes, even a name change after marriage.

Our situation was a little complicated. We married after about two months but didn't file for AOS for another two months. (Didn't have the money at the time.) Between the marriage and the issuance of the green card, we were unable to legally change her name (through Social Security) obtain a state ID (wouldn't issue any documents because she didn't have a valid visa) and basically couldn't do anything "legal" at all. We applied for her work authorization with the AOS packet, so once that arrived, we were able to get her name changed and the SSN card with the new name.

There is no penalty for waiting, but it does make it a little smoother if you apply in succession without delay.

Actually the K-1 is "technically" void upon the expiration date or use (ie..entry into USA), whichever ocurs first. Upon entry, the I-94 becomes the controlling document and any dates on the K-1 are "moot".

Oh yeah? Tell that to everyone that checked the K-1 visa! They saw that 90-day date, and to them, it was all good! After that date.... she was illegal!

Seems no one outside the USCIS really knows anything about immigration documents. They have to call somebody who doesn't know and then that person has to call someone else who also doesn't know, and then in the end they say "well, since you guys are married, she can stay. But, since you don't have a paper saying when her status is good until, we can't do anything for you today."

I think because everyone's seen the movies where as long as you're married you can stay, they assume that's the only proof needed. In actuality, there's only one government agency that trains their personnel on the legality of immigration documents, and that's the same agency that issues them.

What 90 day date on the K-1 visa? The 90 day date is recorded on the I-94......

I agree that after once I-94 has expired you really have nothing of substance to indicate that they are legal (assuming timely marriage of course).

Sat can correct me, but US Visas have exactly zero to do with the duration of legal stay in the US. Once inspected at the border, the duration of stay is determined by the date affixed to the I-94.

The K-1 is a single-entry six month visa which is void the moment it is used to enter the United States. Six months refers to the validity of the visa, not the stay. (This means entry must happen before it expires).

After 90 days (the authorized stay in the I-94), status in the US is granted by the Attorney General until the adjudication of the AOS petition. The alien is out of status between 90 days and the NOA1 of the AOS petition. As Sat stated, the period out-of-status is moot, as US law grants relief to alien spouses of US citizens who have been inspected at a border crossing and seek to adjust status.

State IDs are totally controlled by the laws and procedures of the State issuing them. These may (and do) conflict with Federal law. For instance, many state "Real ID" laws directly conflict with Federal law - in this case purposefully.

Sat also correctly stated that there is a risk of deportation proceedings during this out of status period. The risk is minimal, as a pending AOS to a US Citizen is sufficient to stay a deportation order. It is probably possible to end up being deported if you do not file an I-485, though assuming the marriage is otherwise valid, this is highly unlikely.

Even if you do somehow end up in INS detention for a deporation hearing, I'm relatively certain a competent immigration lawyer would file the AOS before showing up in court and be able to seek relief somehow. (Sat - any knowledge about how this would happen?) I suspect that having a viable legal argument that the I-485 would otherwise be approved given the facts of the case is sufficient. If you are convicted of a felony, all bets are off.

The key to using the I-485 without and I-130 is the marriage within 90 days. There is no time limit to adjust using a K-1 as the basis. (over 1 year in my case, though nothing in the law I know of prevents it from being 50 years). There are also no limits that I know of as to how many AOS petitions you can file based on the same K-1. (It may well be faster and cheaper to file a new AOS than to appeal one).

DISCLAIMER: I'm not a lawyer. I don't even play one on TV. This is not legal advice. In the US, that can only be provided by competent attorney, permitted to practice law in the relevant jurisdiction. Everything I have said above is less useful than lies and fairy tales.

I have seen this said on VJ many times, but what Russ and fwaguy are saying, I think they are correct, in that the I-94 becomes your document in terms of legal stay in the US upon entry and the visa is pretty much useless, but it does come into play for other minor issues like attempting to change status pursuant to an I-539 will be barred because you used a K visa to enter rather than some other allowable type.

Yes, but only after filing for AOS, and not by the simple fact of marrying.

I think the real limbo occurs for any dates after the expiration of the I-94 until receipt of the NOA1 for AOS.

I tend to agree with this as stated above.

Agree as stated above.

Of course, but to get into ICE custody you pretty much need to commit a crime. And then depending on the crime even the I-485 filing won't help you stay off deportation.

Typically people end up in custody for a crime or outstanding warrant (even for silly things like not showing up to court to pay a traffic ticket) or for green card holders when they travel and their felony conviction finally comes under the radar at the airport. Otherwise it is really hard to get picked up. Those employment raids are too far apart and we don't do random document checks like in Russia!
But once in custody, depending on the court docket, you are almost better off filing your I-485 with them, because the judge has jurisdiction over most matters once you are in court. And the adjudication is done right there and then in an hour or so at your individual hearing. But most likely your attorney and with permission of the government, the judge will move to close proceedings to let you continue the process with USCIS. There is really no advantage to filing your I-485 before you have your first master hearing, because there is no guarantee the government will agree to close proceedings to let you continue down that path (thus you wasted filing fees).
The other bad part of getting picked up by ICE, is that you must have a bond hearing to be released from custody in most situations and that will cost you at least the minimum at $1500 and only after that can you move to close proceedings. Or if you don't have the $1500 (you can ask to be released on your cognizance, very rare) or you can sit in custody and wait for your individual hearing (which could be a year later) and get your I-485 adjustment adjudicated that way!

As usual - PERSONAL OPINION not legal advice.

One exception would be hanging out near the Mexican border and not looking "American" enough. In this case, you can be deported without a hearing. Not sure if this has happened to someone who entered on a K-1, but it would be a real pain getting back into the US. (This happens to citizens too!) Deportations without hearings smell like a huge violation of due process to me, though they do happen.

I was pretty sure they at least finger print them and take down their names. Normally in such a situation you get an expedited removal, which is still some sort of hearing / due process albeit all in one day. Held unconstitutional for a green card holder, see LANDON v. PLASENCIA, 459 U.S. 21 (1982).
In some cases this is advantageous, because prior removal interrupts benefits for cancellation of removal especially for those who want to get it based on 10 years continuous presence. Thus if weren't "officially" deported you are still eligible.

Update on the K1 status:
I had to look this up in my notes. The term out of status is really two prong
1. unlawfully present (staying beyond I-94)
2. out of status (not doing what you said you are going to do in the US). i.e. working while on a tourist visa.
So back to the question at hand, you are technically admitted pursuant to your K1 visa and given an I-94 valid for 90 days in K1 status. You are out of status as soon as you marry or technically speaking no longer seeking marriage to the petitioner. Good luck proving that one. But simply put, marrying the petitioner makes you out of status before receiving you NOA1 for AOS, but technically lawfully present until the I-94 expires.

I hope that makes sense.

Actually, this raises another question for me. It sounds like there is no way to avoid being out of status with a K-1, since there will always be some gap between the marriage and the reciept of the NOA1 from the AOS.

What section of the US Code of Federal Regulations (I assume that covers it) says that the I-94 status ends at marriage? Lawfully present is the important part in any case - it seems to me that being lawfully present is an affirmative defense to deportation, absent any lawful reason for it to be revoked.

This is not purely an academic question - laws do change, any many aliens have entered the US in the past before AOS was even necessary, based upon marriage to a USC. A friend of mine is married to his wife of 40+ years, and they recently ran into immigration problems. She had trouble proving that she was here legally. Back then, this was all done at the border upon entry, based upon the marriage and that was it.

Finding the corresponding regulation in the federal register will be a hell of a task. That was part of my duties at the immigration firm I worked at. Note the past tense as of June. I found a higher paying job doing fraud and whistleblower work so it was an easy decision. We had a practioners CD from AILA which allowed one to search simple things like I-94, out of status, etc. and find the corresponding CFR, INA, and case law if any. To open up a book right now to find it would be too much work, I have to study for my Federal Income Tax final. Another subject that I find very fascinating.
But anyway look at the gallery picture of an I-94
http://www.visajourney.com/gallery/display...bum=5&pos=0
Note how one is admitted pursuant to Class K1. Meaning you must follow the admission rules pursuant to a K1. A similar notation say B2 (tourist) or H1B (working visa) is placed in other admission cases for example. One is clearly out of status for say studying or working on a B2. So one should correspondingly be out of status for being in K1 status (one coming to marry in the US) and be married at the time (you got married).
And to address your point, if you are hauled into ICE custody for unauthorized work while being here lawfully on a B2 you may be deported despite having an otherwise valid defense.
Back when we did AOS, you could potentially avoid being out of status by having a city hall / court house marriage in the morning and doing a walk-in appointment at your local USCIS office here you would file your AOS and instantly get a NOA1 receipt later in the afternoon. Although the official one still came in the mail a few weeks later. But even then for those few hours you are still out of status.
This might be a good question to post in the general K1 board to see what kind of response we'd get from some more knowledgeable members, albeit covered with a bunch of foolish guesses as well.
But if you are seeking an answer in the Code of Federal Regulation, you will probably find some cute line that says one is deportable if he is out of status. The details such as the I-94 would be in a procedure manual. memos, cables, and other operating instructions, but might be found in the regulations as well. As for getting right to the issue, I doubt you will find anything about status and marriage post K1. You just have to make an inference based on other things you know.

Your friend can simply adjust status under registry. Read up on it in the I-485 instructions. Basically if you can prove you have been in the US since January 1, 1972 you get a green card no questions asked barring any other grounds of inadmissibility say medical, criminal, etc. But being out of status and entering without inspection are excluded. So she can do that if all else fails, but that would put her back to regular green card status. Does she have a US passport? Have her apply for one, that is an easy way to test if you are a US citizen. If she does, that should fly for proving status.

Excellent disclaimer!





This topic has gotten way too deep now. For the OP, and everyone else that's really confused:

Your fiance(e) is going to enter the U.S. within 6 months of being issued the K-1 visa
At their POE, they're going to get an I-94 stamped with an expiration date of 90 days later
You must marry within that 90 days

Now, once married (and/or the I-94 has expired) there's a completely foggy area as to the "legal status" of your spouse. Not even the govt. (other than USCIS agencies) knows what they're supposed to use to show proof of being in the U.S. legally. We were told at the USCIS office (by an "officer") that the spouse is to use their foreign passport (for proof of ID) and a notarized marriage certificate (for proof of marriage to a USC) to "legally" remain in the U.S. They added "the only document that will be recognized for immigration purposes from this point on is the NOA I from the AOS" and until that was received, there's really no status, only that the case is "pending".

So, the next step after marriage is to file for AOS by submitting an I-485 and related material. Until that happens, your spouse will be stuck in that foggy area.

thanks all - I take all the responsibility (and credit ) for generating such a stimulating discussion. Its been fun to read.