MUST READ!!!! Married outside 90 days

[payxibka 10,044]

I would just move on with my life and not try to undo the past.

They are not trying to UNDO the past but unfortunately the past is impacting there attempt to move forward

[emt103c 10]

As I am sure Heather Poole and Laurel explained, the I-94 was a human error. 90 days was the length of stay, but it would have never mattered if that stupid judge didn't force you to leave. Bans are not incurred until the "alien" exits the US. . .

Be prepared for a longer wait than the consulate promised you. Typically it takes a long time to get a response from the state dept on ANYTHING. I would hire one of the attorneys (HP or LS) if I were you. Things are too messed up to not have help at this point.

[Stephen + Elisha 92]

With all due respect, this response is generally unhelpful and incorrect in at least one respect.

Based on no legal experience concerning this matter but what I've read and making some personal conclusions, this is how I would rule:

You violated the terms of the K-1 by not marrying within 90 days, so your AOS (regardless of what forms you sent) would be denied. Incorrect. It is a clearly settled point that K-1 holders who fail to marry within 90 days are still able to adjust status as long as they married the petitioner, but they must file an I-130 concurrently with the I-485 in order to do so. The USCIS states as much on their website: http://www.uscis.gov/portal/site/uscis/men...00048f3d6a1RCRD This is likewise confirmed by numerous cases of people who have done this successfully.

Since you do have a legal I-94, your length of overstay would commence once that expiration date is reached. True enough, and this is the question that has everyone (including DOS) flummoxed. What controls: the 90-day validity that should have been stamped on the I-94, or the year-plus that was actually stamped on it? The answer to this question determines whether a bar to admissibility attached to her unlawful presence or not.

She is now back in Brazil. You are married to her. You now have the K-3 or CR-1 paths to follow. Which is what they are doing. Your point here?

I would just move on with my life and not try to undo the past. Which is what they are doing. The foreign spouse interviewed for her CR-1, but DOS can't figure out how to calculate her unlawful presence and hence whether or not she incurred a ban.

All this nonsense was started by you two not following the rules that you knew you had to, marrying within 90 days.

So to try to make this someone else's problem is just a smokescreen.

How are they trying to make this someone else's problem? Yes, they made mistakes. They are trying to move forward with the immigrant spouse visa. But they have a complicated immigration law quandary, which will either require a lengthy, expensive waiver process to resolve or not. It all depends on what governs the authorized period of stay in this case, and consequently when unlawful presence began to accrue. And the answer to that question lies in the past, at least in part: at the POE where the I-94 was stamped.

Edited November 11, 2009 by Stephen + Elisha

[rebeccajo 14]

I don't think you have a bar at all.

I94 determines the period of authorized stay. You filed for adjustment under family unity and are under a period of stay authorized by the Attorney General during that period. When the filing was deemed improper the clock began to tick on the bar - thus the advice of the immigration judge to get out of Dodge before a certain date.

I agree with you completely, but I do have one concern that I would like your feedback on. In regard to the I-94, what is your thought on the 15 months that the CBP (Customs and Border Protection) gave my wife upon her entry to the USA. We now know that the she should have been given only 3 months (90 days), i.e., the CBP made a mistake. My wife told the US Consulate this issue at the interview and they somewhat agreed with her - meaning they agreed on points, but couldn't decide who should be punish for this mistake. Subsequently, they kicked it back to the State Department for legal guidance. Another thing that they told my wife was that they couldn't find any law to based their approval or denial of my wife case. I would appreciate your feedback on the I-94 and what possible outcomes are there from the State Department.

Thank you so much.

I think the date on the I-94 was your wife's authorized period of stay.

I have a question for you - why are you letting them return this petition? Have you contacted an attorney who can speak on your behalf before the case is returned?

Here's my personal take on it. I don't think there is a law specifically writtened that states an I-94 for a K-1 visa is valid for only 90 days and what happens when a mistake is made on the I-94 date. The State Department might say that my wife should have known that it is for 90 days, just like everyone have expressed here on this forum. I don't see how anyone can logically decide something based on law by saying that you should know something. It is a law or not a law. If this is the case, we should have gotten a denial at the interview because the US Consulate could have use that excuse on us. They search their lawbooks, the Internet, and consulted with the head manager within the Consulate and they still couldn't decide what to do. I see my wife's case comes down to this. Who should bear the responsibility for the mistake on the I-94? Remember the I-94 drives the unlawful presence count and the 3yr/10yr ban. The I-94 is a legal document that authorizes a period of legal stay in the USA and my wife simply followed the law. What is your argument for or against my argument?

I'm not a lawyer - and with all due respect I don't think my 'argument' for or against matters, you know? You need an attorney who can speak for you.

After a 'duh' moment the other night, I googled "I94 trumps visa" and easily came up with several immigration attorneys quoting that the I94 determines period of stay. The same is quoted in the AILA memo I linked to you. If such is the case, then it matters not how the alien entered. The fact we know a K1 is only SUPPOSED to be stamped for 90 days is where everybody in the thread (including me) is getting hung up.

Like I said - get a lawyer if you really want help. We can sit here and suppose all day long but there are a couple of issues at play here besides the I94. You need someone who speaks with authority and speaks the language of the consulates. That person is not me.

It never hurts to brainstorm with someone intelligent. Thank you for all of your comments.

I do hope you'll come back and let us know how things are going.

[sachinky 464]

Ok, to summarize.

All K-1 entrants PLEASE get married within the 90 day stipulation to save yourselves a world of trouble. Go down to the courthouse and sign a few papers at the very least. Will cost you $40 if you can't afford a big wedding due to financial constraints or time.

If you get married outside the 90 day period, DO NOT FORGET to concurrently file a I-130 AND the I485.

I'm not certain about the I94. I just thought it was a stamp of legal entry, i.e. not EWI. I never noticed it had a date on it.

I would prepare a waiver package just in case. But I think the immigration judge's letter will carry a great deal of weight.

OP, please let us know how the case is progressing. I hope, for your sake, everything gets worked out.

[klicristina 0]

I don't think you have a bar at all.

I94 determines the period of authorized stay. You filed for adjustment under family unity and are under a period of stay authorized by the Attorney General during that period. When the filing was deemed improper the clock began to tick on the bar - thus the advice of the immigration judge to get out of Dodge before a certain date.

I agree with you completely, but I do have one concern that I would like your feedback on. In regard to the I-94, what is your thought on the 15 months that the CBP (Customs and Border Protection) gave my wife upon her entry to the USA. We now know that the she should have been given only 3 months (90 days), i.e., the CBP made a mistake. My wife told the US Consulate this issue at the interview and they somewhat agreed with her - meaning they agreed on points, but couldn't decide who should be punish for this mistake. Subsequently, they kicked it back to the State Department for legal guidance. Another thing that they told my wife was that they couldn't find any law to based their approval or denial of my wife case. I would appreciate your feedback on the I-94 and what possible outcomes are there from the State Department.

Thank you so much.

I think the date on the I-94 was your wife's authorized period of stay.

I have a question for you - why are you letting them return this petition? Have you contacted an attorney who can speak on your behalf before the case is returned?

Here's my personal take on it. I don't think there is a law specifically writtened that states an I-94 for a K-1 visa is valid for only 90 days and what happens when a mistake is made on the I-94 date. The State Department might say that my wife should have known that it is for 90 days, just like everyone have expressed here on this forum. I don't see how anyone can logically decide something based on law by saying that you should know something. It is a law or not a law. If this is the case, we should have gotten a denial at the interview because the US Consulate could have use that excuse on us. They search their lawbooks, the Internet, and consulted with the head manager within the Consulate and they still couldn't decide what to do. I see my wife's case comes down to this. Who should bear the responsibility for the mistake on the I-94? Remember the I-94 drives the unlawful presence count and the 3yr/10yr ban. The I-94 is a legal document that authorizes a period of legal stay in the USA and my wife simply followed the law. What is your argument for or against my argument?

I'm not a lawyer - and with all due respect I don't think my 'argument' for or against matters, you know? You need an attorney who can speak for you.

After a 'duh' moment the other night, I googled "I94 trumps visa" and easily came up with several immigration attorneys quoting that the I94 determines period of stay. The same is quoted in the AILA memo I linked to you. If such is the case, then it matters not how the alien entered. The fact we know a K1 is only SUPPOSED to be stamped for 90 days is where everybody in the thread (including me) is getting hung up.

Like I said - get a lawyer if you really want help. We can sit here and suppose all day long but there are a couple of issues at play here besides the I94. You need someone who speaks with authority and speaks the language of the consulates. That person is not me.

It never hurts to brainstorm with someone intelligent. Thank you for all of your comments.

I do hope you'll come back and let us know how things are going.

Here we are...

no news fo far . Today my husband went to the airport to try to talk with someone at the CBP, and here is the email that my husband sent to me:

It didn't go well at the CBP office at Dulles International Airport. The guy was a jerk...very unhappy person. Basically, the CBP at Dulles doesn't have the power to do anything for us. They only issue I-94's and make corrections if necessary. Afterward, I call the State Department and I was able to find new information about our case. The lady that I talked to told me that they are waiting to hear back from the Department of Homeland Security on whether you have accrued any unlawful presence in the United States. The CBP is part of the Dept. of Homeland Security so you know this information. This kinda explains why our case is taking longer than we expected because apparently the State Department had to verify your I-94 and departure date from U.S. with the Dept. of Homeland Security and from that they can determine if you have accrued any unlawful presence subjecting you to the 3yr or 10 yr ban.

That's it! I am soooooo sad. First, the CO told me was 2 weeks. Now, 1 or 2 months to give as the answer. I just want to know the truth

[rebeccajo 14]

Hang in there!

[mrs. wife! 3]

Wow, I saw a case where the girl was worried and I thought was you. She had her interview not long ago... Maybe Jana? I saw it at the Brasileiritchas forum.

I'm sorry things are not working out.... Hopefully you'll have some news soon

Hang in there!

[klicristina 0]

Wow, I saw a case where the girl was worried and I thought was you. She had her interview not long ago... Maybe Jana? I saw it at the Brasileiritchas forum.

I'm sorry things are not working out.... Hopefully you'll have some news soon

Hang in there!

Thanks... I hope so too

[klicristina 0]

Hang in there!

i'm trying to hang in there!