Controlling Documents for Legal Presence in the United States

[Nik+Heather 122]

Apparently there is a "common knowledge" issue here on Visa Journey regarding the documents which control a K-1 visa entrant's legal presence in the US.

Viewpoint A:

Status is controlled by I-94 and AOS receipt date (NOA1). A gap between I-94 expiry and AOS receipt date would result in the applicant/K-1 entrant being "out of status".

Viewpoint B:

The K-1 entrant is legally present in the US provided that they have married before the expiration date on the I-94, and they continue to be legally present after the expiration of the I-94 if they have not yet filed for Adjustment Of Status.

So, can any one point us to an "official" source, or quote law at us or link to a USCIS page which explains the nuances? I'd like view A or view B to be squashed so that we can give the correct, unopinionated information.

As a somewhat related, but not meant to be discussed in this thread note, parties of BOTH viewpoints generally concede that there will be no issue with the AOS process once AOS is filed. The question rather stems from the idea that the process, and life in general do not operate in a vacuum - more consequences (if any) should be considered than if the USCIS will throw out a late AOS filing.

[VisaJourneyLady 33]

Whaddya mean viewpoint? These are not views, one is scaremongering and the other is simply true.

[Nik+Heather 122]

Whaddya mean viewpoint? These are not views, one is scaremongering and the other is simply true.

Again. Please provide sources. All I can find are DMV websites when I search, and I was hoping someone who isn't quite so hopeless at performing internet searches could help us out with the law regarding legal status so we can get things clearer. I know there are some people on VJ who are actually quite proficient at ferreting out the code governing this sort of thing.

[Nik+Heather 122]

Huh. Somebody with a contrary nature might just take you up on this...

I hoped that we could have a higher fidelity discussion, so rather than go on about something we all can agree on, and where the focus usually tends to fall, I thought that I would point out that it's not what's under contention.

Anyway, I'm interested in what the law states. What happens when a violation of that law is enforced (if it's enforced) is a different issue.

[baron555 934]

if the USCIS will throw out a late AOS filing.

I think what you're assuming is that AOS would be denied because you filed "late". I have never read that this is the case.

So there is no worry to be had here. Stop worrying.

Now AOS has been denied to some because the marriage is not provable to be ongoing or some other reason.

Now in some few cases, once that denial is made, the USCIS may (or may not) look into the difference in time between the I-94 expiration and when the AOs filing was made. They may (or may not) consider that time to be out of status and may (or may not) institute the ban criteria and may (or may not) start deportation proceedings.

So to not worry about any of this one should plan to marry within 90 days of the expiration of the I-94 and also file for AOS within the same time.

Some folks do not do a good job of budgeting ahead for this (including the potential to lose one's job or having major medical costs) or are just lazy or unaware of what to do and when to do it and they get caught in this inbetweeness.

Don't let yourself get caught iin this situation s the best answer.

And I agree with Mox, you are not illegal while you are waiting on an AOS decision, you just can not do many tnings, like legally work, etc. etc.

[Bernie C 24]

Below copied from USCIS website under K Nonimmigrant. See bolded section below. I believe if I can read it says "you will have to file for adjustment of status in order to get your green card and to remain LEGALLY in the US. Those who think they know everything but dont should not provide advice to others who are concerned about doing the right thing!

Application Process

If you entered the United States as a fiancé(e) of a U.S. citizen (K-1), child of a fiancée of a U.S. citizen (K-2), or the spouse or child of a U.S. citizen (K-3 or K-4) you will have to file for adjustment of status in order to get your green card and to remain legally in the United States.

To obtain a green card, you need to file Form I-485.

If You are Present in the United States as a K-1 Fiance(e)

You should apply for adjustment as soon as you marry your fiancé(e). By law and regulations, you are required to marry the U.S. citizen who petitioned for you within 90 days of your admission to the United States in K-1 status. If you fail to marry, you will become removable from the United States and cannot adjust through any other means.

[M.O 6]

if the USCIS will throw out a late AOS filing.

I think what you're assuming is that AOS would be denied because you filed "late". I have never read that this is the case.

So there is no worry to be had here. Stop worrying.

Now AOS has been denied to some because the marriage is not provable to be ongoing or some other reason.

Now in some few cases, once that denial is made, the USCIS may (or may not) look into the difference in time between the I-94 expiration and when the AOs filing was made. They may (or may not) consider that time to be out of status and may (or may not) institute the ban criteria and may (or may not) start deportation proceedings.

So to not worry about any of this one should plan to marry within 90 days of the expiration of the I-94 and also file for AOS within the same time.

Some folks do not do a good job of budgeting ahead for this (including the potential to lose one's job or having major medical costs) or are just lazy or unaware of what to do and when to do it and they get caught in this inbetweeness.

Don't let yourself get caught iin this situation s the best answer.

And I agree with Mox, you are not illegal while you are waiting on an AOS decision, you just can not do many tnings, like legally work, etc. etc.

Agreed...

[Nik+Heather 122]

if the USCIS will throw out a late AOS filing.

I think what you're assuming is that AOS would be denied because you filed "late". I have never read that this is the case.

Sorry if I wasn't clear. I meant to say that we can call agree that USCIS will NOT throw out a "late" AOS filing. The question isn't aimed so much at what USCIS does if you don't file AOS, but what a K-1 entrant's legal status is post I-94 expiry and pre AOS filing if those dates don't overlap.

So to not worry about any of this one should plan to marry within 90 days of the expiration of the I-94 and also file for AOS within the same time.

Some folks do not do a good job of budgeting ahead for this (including the potential to lose one's job or having major medical costs) or are just lazy or unaware of what to do and when to do it and they get caught in this inbetweeness.

Don't let yourself get caught iin this situation s the best answer.

Agree that this is the conservative advice, but where is the law/code/policy source?

And I agree with Mox, you are not illegal while you are waiting on an AOS decision, you just can not do many tnings, like legally work, etc. etc.

I'm not sure that you only agree with Mox then. I believe that the "common knowledge" also agrees that "adjustment applicant" is a legal status.

I guess I wouldn't feel comfortable being anything other than conservative just because "some guy on the intarwebz says" and I have politely asked for published sources to be cited...

[Nik+Heather 122]

The CFRs are authoritative.

Hopefully someone with access can come sort us out then. That's why I started the thread.

Then what you really need to do is talk to an immigration lawyer.

I think it's a good idea. Maybe after work.

[elmcitymaven 9,712]

I just read the bulk of the applicable sections of 8 CFR, including Section 1.1 (Definitions) to get a sense of whether the regulations are drafted so that if the law is silent on a matter, it is permissible. The general tenor of the regulations is prescriptive, which leads me to believe that, in the absence of any other black letter law or indeed case law on the issue, that there is no regulation in existence in the CFR which prescribes when a K1 visa entrant must begin adjusting status. However, there may very well be other law out there.

[LaL 418]

Well you could start by getting ahold of Section 8 of the Federal Uniform Code of Regulations. But unless you're a lawyer or adept at extracting useful information from government documentation, you're going to have a hard time finding a definitive source, because it's not really spelled out like a recipe. If memory serves, I learned about this from either Rebeccajo or one of the other old-timers, who did take time to search through volumes of USCIS regulations. But they didn't just Google it, they either download the relevant CFR's or possibly had access to the hard copy.

are you sure about that? because I know full well rjo understood the ramifications of adjusting on a timely basis.

ETA a good read : http://www.visajourney.com/forums/index.ph...t&p=2486976

Edited February 24, 2010 by LaL

[Kathryn41 3,205]

Below copied from USCIS website under K Nonimmigrant. See bolded section below. I believe if I can read it says "you will have to file for adjustment of status in order to get your green card and to remain LEGALLY in the US. Those who think they know everything but dont should not provide advice to others who are concerned about doing the right thing!

Application Process

If you entered the United States as a fiancé(e) of a U.S. citizen (K-1), child of a fiancée of a U.S. citizen (K-2), or the spouse or child of a U.S. citizen (K-3 or K-4) you will have to file for adjustment of status in order to get your green card and to remain legally in the United States.

To obtain a green card, you need to file Form I-485.

If You are Present in the United States as a K-1 Fiance(e)

You should apply for adjustment as soon as you marry your fiancé(e). By law and regulations, you are required to marry the U.S. citizen who petitioned for you within 90 days of your admission to the United States in K-1 status. If you fail to marry, you will become removable from the United States and cannot adjust through any other means.

Here is the source of the above, btw - note it is from USCIS. http://www.uscis.gov/portal/site/uscis/men...000082ca60aRCRD

It also states: By allowing a fiancé(e) and his/her accompanying minor children to be admitted to the United States as nonimmigrants, fiancé(e)s can be spared a long separation from their intended spouse, while continuing their processing for an immigrant visa after the marriage takes place. indicating that filing to adjust status is expected.

Edited February 24, 2010 by Kathryn41

[HeatDeath 431]

I don't know if an unambiguous true answer to your question exists, and if it does it is much more likely to be found in case law than in the code of federal regulations. By means of an analogy from computer science, here is why:

In computer programming, computer applications are usually designed around what are called "use cases". The designer writes out a series of scenarios that will represent typical sequences of the the user is expected to use the application. These scenarios are then used by the programmers to create a program that will work the way the designer described in the use cases.

The difficulty comes because, to steal the old aphorism about battle plans, no use case survives contact with the user Users can usually be counted on to act completely differently than any use case created by a computer savvy developer, to do things in random order, and to generally work very hard to knock the application off of it's well planned rails and into la-la land.

A common technique when developing computer applications, to prevent this from happening, is to use what is called a "gremlin generator" - another program that will throw repeatable but utterly random sequences of user interface events at a program. Doing this can reveal bugs in the program that would otherwise be completely invisible, because no sane human being (by the definition of the designer who wrote up the use cases) would ever use the program that way.

I suspect immigration law is basically equivalent to computer code written using use cases. The visa, AOS, ROC, and naturalization processes were designed with the assumption that no "sane" human being would ever attempt to do things out of the "logical" order, or with unusual delays between parts of the processes that are intended to be temporally adjacent. These weird ambiguities we frequently discuss here, like the legality and consequences of being "out-of-status", or the legality and consequences of adjusting from a nonimmigrant visa, are prime examples of situations the laws were never intended to deal with. That is why we see that these situations are incompletely and ambiguously addressed, when addressed at all, in the posted laws, and are only addressed (and incompletely at that) in the legal "emergency patches" of case law.

Case law is the debris left where the formal system hits reality. It is what is left over when a human officer, confronted with a situation the law is silent about, has to make a decision one way or another, simply to inject some compassion into the machine or, more frequently, just to allow everyone to get on with their day. Officers usually try to make sure their case decisions are compatible with and similar to other case decisions, but there will always be small inconsistencies with other decisions in case law, and even with the posted regulations themselves.

Those of us posting here are more likely than the general population to be technologically savvy. We are accustomed to working with formal systems (computer programs) that deliver clear, unambiguous, reasonably correct outputs for the vast vast majority of possible inputs. The law is no such beast. If you attempted to analyze it for completeness and consistency, or to write a computer program that perfectly and consistently implemented it, that program would crash almost instantaneously. The mere attempt to write it would reveal a galactically vast array of ambiguities and inconsistencies, the merest attempt of which to document would fill entire libraries. Indeed, this is exactly what has happened with the recent introduction of automatic tax software - a specific and intentional attempt to regularize and formalize a body of civil law.

It is for these reasons that, despite well intentioned and well informed instincts to the contrary, I don't feel it is reasonable to expect that questions regarding the content of immigration law have well defined and consistent answers when applied to cases completely beyond the expectations or conceptions of the lawmakers who designed the system.

[TBoneTX 48,075]

Heather, amidst some other very good suggestions, try this: Pick three CBP ports, preferably along the Texas/Mexico border, phone them, and ask the question. I suggest calling three ports because you could get a better description from one than from another, and because three similar answers (presuming similarity) would constitute a pattern of consistency in enforcement & explanation of the governing law.

You may find CBP agents who are willing to speak with you in depth or detail if you call after 10 p.m. or midnight, when some ports are closed to traffic for the night, si man: http://www.cbp.gov

Alternatively, if you wish to call during business hours, you can usually get right through to Mike Perez, the outstanding Port Director of Del Rio, TX. He is extremely congenial and informative, si man.

[TBoneTX 48,075]

[...] It is for these reasons that, despite well intentioned and well informed instincts to the contrary, I don't feel it is reasonable to expect that questions regarding the content of immigration law have well defined and consistent answers when applied to cases completely beyond the expectations or conceptions of the lawmakers who designed the system.

You have outdone yourself in eloquence, literacy, and elegant reasoning, si man. Egad, but what a breath of fresh air on VJ you are, si man.

This inspires a self-piggybacking upon the message that I posted near-contemporaneously with HeatDeath's, si man: When you phone the CBP ports, ask them whether black-letter law does exist, and, if not, how CBP and perhaps ICE settled upon their procedures to deal with out-of-statusism. Not every agent to whom you speak may be able to answer this, but you may get some interesting insights, si man.

Speaking to the general air, I continue to believe that "out of status" intrinsically (and, in practice) can or does mean that "you're in trouble large or small, si man." The government has unlimited time & resources to make our life miserable, so I adhere to the "large" end of things, sigh man.