Controlling Documents for Legal Presence in the United States

[sachinky 465]

This is just my layman understanding but a K-1 is sort of like a one time tourist visa to enter the U.S. and marry your original USC petitioner in 90 days. If you marry outside the 90 days, you can still file for AOS but as an immediate relative of a USC, and not off your K-1. Once your I94 expires, you're out of status just like overstaying a B2 visa would be. So it is advised to get married and file for AOS before the 90 days are up. However, overstaying/out of status is not illegal in the sense an EWI would be. However, unless you do "adjust your status" you're not a LPR and don't enjoy any of the basic rights. It's similar to a tourist overstaying his I-94 date. The process doesn't end with the acquisition of the K-1. The AOS is a natural progression.

Edited February 24, 2010 by sachinky

[Rebecca Jo 1,962]

It might have been RJ, or not, I don't remember. But the post you linked echoes my own sentiments: plan for every step of the journey, and file for AOS as soon as possible. But that's opinion. The law in this case doesn't hold us to our opinions.

What would be your opinion of the term "out of status" then?

I know this would all be so-much-easier to understand if there were a place in the INA, the CFR, the Field Adjudicator's Manual or even some Interoffice Memorandum of the Service that black-and-white-in-your-face said "K1 must file for Adjustment of Status by the date on their I-94 or the adjustment will be denied". Since it's not out there though, I'm going to operate under the assumption you can't be convinced that the definition of "out of status" applies just as equally to a K1 as it would any other alien. Why that would be I have absolutely no idea.

Here's a transcript from an online Q&A with attorney Laurel Scott. Page 7 has an interesting question, response and footnote.

http://www.scottimmigration.net/Chat0506.pdf

ratpynn:

Hi Laurel! It appears that my wife triggered the 10 year ban by

leaving the US prior to filing for AOS & having accrued about 18

months of "unlawful presence". My questions is, does the the 10 year

ban start the day after we were married(she came her on a K-1), or

does it begin the day she left the US? I guess I'm trying to figure what

our options are at this point, and unfortunately none of them look

good from where I'm standing...thanks for your help!!!

Laurel:

I was just talking about this with my paralegal this morning - is the alien

accruing unlawful presence after the marriage, but before the authorized

stay as listed on the I-94 has expired? A married person can't be a K1, so

by that reasoning, the person is out of status2. But as no one files an AOS

on the date of the marriage, it seems unreasonable (not that the INA is

reasonable) that the person goes out of status on that date. I'm not 100%

sure of the answer. But I can tell you that for you its moot. A person is in

lawful K1 status for no more than 90 days. If your wife was potentially out

of status for 18 months, then even if you cut three months off, its still over

a year. So either way, she needs a waiver.

Footnote: Subsequent research indicates that the K1 remains in status for the full 90 days after entering as a K1, regardless

of when the marriage occurs. The K1 would not be accumulating unlawful presence until the end of the 90 days.

Before you say, ‘well of course …’, bear in mind that immigration law does not always make sense, so don’t

presume what the law is based on the logic of normal people.

[belinda63 3,055]

it's a long morning and i'm bored so here is my take on the situation.

You are legal until the I-94 expires.

If you marry within the 90 days the petitioner for the K-1 you have the right to file for AOS

Between the expiration date of the I-94 and filing of the AOS you are out of status and subject (though very unlikely) to being removed from the US as you have no status to be here.

Have a good morning everyone.

[sachinky 465]

Interesting read, JQ. Makes sense considering that the once the I94 expires, the alien begins to accrue overstay and illegal presence. As this woman had not filed for AOS when she left the country, her overstay earned her a 10 year ban.

[Eric_Jew Nug 2]

every single law that is created is done with loopholes, these loopholes are often left there deliberately, why? so as a mean of allowing the wealthy and "prudent" a means of weaseling their way through the everyday restrictions of life that bounds normal people. the only time these loopholes are closed, is when it becomes apparent to the creators, that too many person have become aware of it, and it can no longer adequately suit their needs. (my opinion)

[Nik+Heather 122]

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.

Thanks for looking that up, Maven. I have a couple of other questions - probably stemming from my lay person understanding of the words you used, which I'm sure have quite specific and lengthy legal definitions.

Checking for understanding: I think you said that the section that you were reading describes the K-1 visa and its privileges in a creative "The K-1 is" sort of way instead of "The K-1 is not". And that furthermore, you could not find any mention about K-1s and their status after marriage.

I wonder if it is a correct understanding to say that if the code does not specifically say that the K-1 status is somehow special in that the K-1 visa + a marriage certificate shows legal presence indefinitely, why would we not assume that the question of status goes back to default just like any other visa. By that I mean, just like any B-2 etc, when the I-94 expires, status is gone, unless AOS has been filed?

[Rebecca Jo 1,962]

I wonder if it is a correct understanding to say that if the code does not specifically say that the K-1 status is somehow special in that the K-1 visa + a marriage certificate shows legal presence indefinitely, why would we not assume that the question of status goes back to default just like any other visa. By that I mean, just like any B-2 etc, when the I-94 expires, status is gone, unless AOS has been filed?

BTW, even a status adjustment applicant who filed within the date of their last legal status has no defined status until their AOS is approved. An alien with an accepted I485 who is outside the date of their last legal stay is considered to be in a "period of stay authorized by the Attorney General".

[Nik+Heather 122]

BTW, even a status adjustment applicant who filed within the date of their last legal status has no defined status until their AOS is approved. An alien with an accepted I485 who is outside the date of their last legal stay is considered to be in a "period of stay authorized by the Attorney General".

Yeah, I had just read your post which clarifies the difference. I thought that the sections you had posted and the lawyer-ly interpretation quoted was interesting. The grace period ("period of stay authorized by the Attorney General") granted to people who have made a filing was only considered valid in the case described when the filing was made before the I-94 expired.

http://www.ansarilawfirm.com/docs/Interpre...ney-General.pdf

(and Johnny's summary here: http://www.visajourney.com/forums/index.ph...&p=3739942)

I wish that it was for K-1s, as that's the sort of thing I was hoping to find, as there is this idea that K-1 visas confer a special status which is no longer defined by the I-94...

[Rebecca Jo 1,962]

I wish that it was for K-1s, as that's the sort of thing I was hoping to find, as there is this idea that K-1 visas confer a special status which is no longer defined by the I-94...

Pardon?

I'm not following you......

[Rebecca Jo 1,962]

Removing my belief hat now. A K1 entrant is NOT REQUIRED to file AOS before the I-94 expires. There are no penalties, there is no risk to being expelled from the country, and if/when the K1 entrant does get around to filing AOS, the green card they receive is exactly the same greencard as the K1 entrant who filed on day 1 of their I-94.

I believe that on May 31, 2020 my trust fund will pay out. On that date I will have at my disposal $1M.

Until that date though I still have no money. I can't buy food or gasoline. I can't heat my house or pay the light bill. I can go buy stuff on credit but I can't make the payments. I can find myself in receipt of letters from creditors asking for their money. I wonder if they will wait until May 31, 2010.

[TBoneTX 48,075]

There are no penalties, there is no risk to being expelled from the country

Has anyone phoned a CBP port to ask what happens in practice, si man? There ARE posts on VJ from people who were detained at great length, si man.

[Nik+Heather 122]

Pardon?

I'm not following you......

http://www.visajourney.com/forums/index.ph...t&p=3739942

This thread was started because there is confusion on the part of some people about whether or not a K-1 has any special provisions such that if they fulfill the terms of their visa (marriage within 90 days) that they do not go out of status (or whatever) with the expiry of the I-94. It's obvious how things are when you look at someone who entered on a B-2 (as was discussed in your link). Please don't take this as a dig or even disagreement. I'm just trying to drive the discussion to a satisfactory conclusion, without leaving room for "But that only applies to OTHER visas". (Like here: http://www.visajourney.com/forums/index.ph...&p=3738940)

This assertion is just one example, but I have seen similar posted in other places, so I'm looking for clarification regarding the K-1 as a specific case.

There's nothing inherently illegal about being out of status. Being out of status just means you haven't adjusted status. Hell, you're out of status the moment you pass the POE. It's not really a gray area, it is what it is. The I-94 has nothing to do with status. The timestamp on the I-94 only indicates the date you have to either be married to the petitioner or gtfo. The K1 recipient's passport, I-94, and marriage certificate is the only documentation necessary to stay in the country.

Edited February 24, 2010 by Nik+Heather

[Nik+Heather 122]

"But that only applies to OTHER visas". (Like here: http://www.visajourney.com/forums/index.ph...&p=3738940)

Dang, the edit window closed & I had C/Pd the wrong link...

http://www.visajourney.com/forums/index.ph...t&p=3741022

Edited February 24, 2010 by Nik+Heather

[sachinky 465]

I've read severals posts by people or their spouses who had not filed for AOS after their I-94 expired and they were detained when unable to prove lawful presence after a run-in with law enforcement agencies.

You're required to file for AOS otherwise you are out of status and starting acquiring illegal presence (which ceases once your status changes to AOS pending). AOS is simply the next step to the K-1. Sure, you don't HAVE to file for AOS -- that is if you don't plan to drive or work or travel and are content with staying at home and grocery shopping.

The K-1 has no special provision apart from the AOS. You file the I485 to adjust status from a K-1. If you're AOS from a B2, you need to file the I-130 and I485 concurrently as an immediate relative of a USC. Same thing if you happen to marry outside the 90 days on a K-1. The K-1 is a single entry into the U.S. and is voided at POE. Even the B2 is a multiple entry 10 year visa.

[TBoneTX 48,075]

I believe that on May 31, 2020 my trust fund will pay out.

Do you trust in your fund, si man?