Controlling Documents for Legal Presence in the United States

[klicristina 0]

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

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

When are you out-of-status??? When your K-1 visa expire or I-94?

[sachinky 465]

The thing is even if you provide those things: I-94, Passport and Marriage Certificate and the date on the I-94 has passed, then quite simply you're OUT OF STATUS. So what is that proof of? Unlawful presence. Despite legal entry and marriage to USC. You're out of status and that doesn't change unless you file for AOS.

And if a poorly trained officer is going to decide whether you are going to be detained or not, I'm not sure I want to be taking that chance.

What I meant to say was that if you want to lead a normal life then yes, you're required to file for AOS but no one is going to force your arm to do it if you wish to stay at home and not venture much beyond the local supermarket.

I-94 is what allows your duration of stay. For K-1s, that is 90 days. Similar to B2, those visas are usually valid for 10 years but the I-94 is usually 3-6 months.

Ok, this is getting boring now. Apply common sense and when it comes to matters of immigration, err on the side of caution.

Toodles.

Edited February 24, 2010 by sachinky

[Rebecca Jo 1,962]

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.

I didn't take it as a disagreement at all. My linear thought processes just needed clarification. Written word and all that, you know.

I've never read anything in the code nor seen anything through reading experience which would imply some sort of legal immigrant status to a K entrant beyond expiration date of their I94. I'm honestly confused as to how anyone could think there would be such a privilege.

The only thing a K visa does is allow a foreign born person entrance to the US to marry a US citizen. Period.

If there was some preserved legal status by virtue of a K1 entry, why would status adjustment even be required?

You don't have to be a K1 entrant to marry a US citizen and file to adjust. I think readers to these forums forget that. All that "forgiveness" of overstaying a prior status and working without authorization is a grant of an approved adjustment via the family relationship to a USC. Those are not privileges derived from the K.

[Nik+Heather 122]

When are you out-of-status??? When your K-1 visa expire or I-94?

The visa expiration date DEFINITELY has no bearing after entry, the I-94 expiration is the new date. This thread is driving at when "out of status" or "legal presence" begins/ends.

[Nik+Heather 122]

You don't have to be a K1 entrant to marry a US citizen and file to adjust. I think readers to these forums forget that. All that "forgiveness" of overstaying a prior status and working without authorization is a grant of an approved adjustment via the family relationship to a USC. Those are not privileges derived from the K.

Yes, the fact that it's retroactively forgiven and not forgiven in the present doesn't always get communicated...I think it's hurtful for people who get caught in the "present" before their adjustment goes through and the slate gets cleared.

[Rebecca Jo 1,962]

Proof: I-94 + Passport + Marriage certificate. That's all you need. A poorly trained officer or the K1 recipient's failure to provide these documents is a different matter entirely.

What does this prove?

Being married to a US citizen doesn't offer an alien any protections unless their status adjustment has approved.

Waving around the documents that you COULD have filed to become a permanent resident doesn't prove anything other than .................stupidity.

[sachinky 465]

K-1 is a single entry non-immigrant visa to enter the U.S. to marry the USC petitioner within 90 days. No special privileges, whatsoever. Unless you file for AOS, you don't have legal immigrant status. Period. Otherwise, it is just like a tourist overstaying his B-2. This doesn't seem like rocket science to me.

JQ--Agreed. 100%.

[Rebecca Jo 1,962]

It proves that you are in the country legally.

Does that make the alien any less removable?

[Nik+Heather 122]

If you mean "could the government take a law-abiding immigrant off the streets and expel her from the country for absolutely no reason at all?" then I think it's unlikely. Of course there's the whole PATRIOT Act thing where the President has the power to make anybody, even natural born citizens, disappear off the face of the planet with no access to representation, so who knows? But I'd say in the general case, if the government really wanted to throw a law-abiding immigrant out of the country for absolutely no reason whatsoever, then even a mediocre immigration lawyer could probably stop that from happening.

So, I'd really like to see the law which says that a K-1, unlike EVERY OTHER VISA HOLDER is different in that the I-94 expiration date doesn't apply to them. Anything other than that is just chewing it over, not actually getting us anywhere. Maven didn't find anything which said explicitly that it was legal, (or she didn't say), so where do you get that the K-1 is any different in terms of legal presence than any other visa. That's the question. Just saying it over again does NOT back up your position!

[klicristina 0]

So, I'd really like to see the law which says that a K-1, unlike EVERY OTHER VISA HOLDER is different in that the I-94 expiration date doesn't apply to them. Anything other than that is just chewing it over, not actually getting us anywhere. Maven didn't find anything which said explicitly that it was legal, (or she didn't say), so where do you get that the K-1 is any different in terms of legal presence than any other visa. That's the question. Just saying it over again does NOT back up your position!

I would love to see the law. My lawyers could not find it!

[sachinky 465]

So, a tourist overstays his B2 visa for about 5 years. He's not an illegal immigrant as he entered the country legally and it was not an EWI. As for his current presence in the U.S. -- would you say he is in the country "legally?"

Illegal--EWI.

Out of Status--Overstaying the terms of your visa. Or violating the terms such as working without authorization. Not exactly "legal" either.

Are you an expert in immigration affairs or a trained attorney, Mox? I'm guessing not. So your opinion, and it is just that, is just as valid as my opinion. So far, I've not seen any links to official sources agreeing to this responsibility/legally required debate you are engaging in.

Here's the thing: the date on the I94 is your authorized duration of stay. For example, for F-1s, they stamp D/S. Not a particular date but your stay depends on your I-20. For K-1s, 90 days to marry or get out. Once that expires, you're out of status. Simple.

Edited February 24, 2010 by sachinky

[sachinky 465]

I guess I'm trying to understand why you think the K-1s are a separate brand altogether -- why are they so special when NOTHING indicates that they are?

What if someone entered on a B2--overstayed their visa, married a USC and then didn't file for AOS. How would that work in my above example? Suddenly they are legal and in status and afforded extra protection?

The date on the I-94 is your "authorized duration of stay"--you're not out of status when you walk out of the airport. Where do you get that idea? I was on a F-1 for four years, our international office director would always remind us to stay "in status" by taking the appropriate number of classes, working on campus for the allowed number of hours etc, -- that is, NOT violating the terms of our visa and thus, not going out of status.

Edited February 24, 2010 by sachinky

[Bobby+Umit 161]

My two cents.

Disclaimer - I bounced everything I'm about to post to an immigration lawyer, a CBP officer, and a USCIS officer - because I was curious and wanted to help a buddy going though a mess with immigration.

Lets put aside the K-1 issue first.

Lets talk Status

If you come to the US as a visitor or other visa (K-1), you will be issued a I-94, and the CBP will put a date on it showing how long your authorized stay is. (

Simply put - your I-94 controls your status. It is the only thing that does. (USCIS)

Either is says a certain date or D/S (duration of stay - usually issued to students for duration of study) - If it has a date, once that expires, you are out of status.

If it says D/S, only an IJ (immigration judge) can determine if your out of status.

Again - once that "authorized stay" date is reached, you are out of status, accruing days...

Once you acquire 180+ days out of status - you are subject to a ban when you attempt to come back into the US. (very important this point - you will see it later).

If you are stopped by ICE/CBP with an out of status I-94, they can process you out of the US unless you have done something to prevent this.

(special note - specifically asked this - regardless if your married to an USC or if you came here on a K-1 - the I-94 is the only document they care about - visa's get you into the country - the I-94 or Greencard controls your status).

How do you prevent this?

Either get an extension on your I-94 or AOS legally.

I will not go over the how/who can AOS - the instructions clearly state that.

People are correct, you should have no issue being out of status prior to filing for the AOS, because, the ban doesn't kick in till you attempt to re-enter the US. If your in the US - no ban. (I told you this material would be seen again)

Unless you have some adverse reasons that prevent it - your AOS is almost assured. BUT - if your AOS is denied, and your sent home, and you went out of status 180+ days - that ban would kick in when you attempt to return to the US with a new visa (all though, it should of been caught at the embassy level and a waiver would be needed)

There is no law saying you have to file for the AOS before your I-94 expires. However, there are laws/regulations regarding the I-94, which go into play in this case.

Your type of visa does not change this for the I-94.

_______

Personal note:

Filing for the AOS helps you down the line for USC and other benefits. (like having to redo the K-1 medical if you took more than a year to AOS)

So - each person will have to make up their own mind on what to do.

I suggest - strongly - for each person to protect their status - if you do that - then no problems.

Edited February 24, 2010 by Bobby+Umit

[Rebecca Jo 1,962]

You're actually out of status the moment you enter the country.

That is incorrect.

The visa is "dead" the moment the alien enters the country. The alien is within legal status until the date of the I94.

[Trompe le Monde 1,107]

I suppose the difference would be that overstays are usually forgiven if you are married to a USC - if you don't leave and apply to adjust status that is

of course you could be deported if you haven't adjusted for whatever reason - no a risk I'd want to take, but has it actually happened to someone who, say, didn't adjust because of financial difficulties who was married to a USC?

I'd be interested in real life examples of this and not speculation of what might happen