Do we really have to file for AOS within 90 days of entry?

[RUSSandRACHEL 3]

I know this may sound a silly question... but hey... Russ and I are supposed to be sending off our AOS packet this week but money is a little tight and I'm wondering whether we can put it off a little longer...

I arrived on my K1 on May 31st and my stamp in my passport is vaild until August 29th. We had a wonderful wedding on June 27th, so got married well within the 90 days. So, do we also have to file for AOS within the 90 days aswell? I know USCIS like you to do that, but I've heard of a few couples on here that waited it out a little longer and then got the 10 year green card as 2 years had passed since the marriage. While that's not quite what we plan to do (especially if its wrong) but does anyone really know what the law is regarding AOS and when are we oblidged to file by?

Many thanks!

Edited August 1, 2010 by RUSSandRACHEL

[sachinky 464]

As long as you've married the USC petitioner within 90 days, you have complied with the terms of K-1 visa.

There is no 'time limit' per se, by which you have to file for AOS, but it is recommended that you do it as soon as possible as you don't want to be 'out of status' for too long, certainly not 2 years.

Congratulations on your wedding!

[RUSSandRACHEL 3]

Thank you so much! So if you don't have to file within the 90 days, what do think is an acceptable time?

[payxibka 10,044]

no real time frame other than the sooner the better

[sachinky 464]

As soon as you'd like to work, travel etc.

[Anh map 2,098]

If employment is a concern then filing the AOS and EAD would be a priority.

And you may not want to travel to Arizona or on any highways that have inland CBP inspection stations until the AOS application has been filed.

[RUSSandRACHEL 3]

We don't have any plans to travel there so thats fine. I do want to start work eventually but paying out fees for AOS right now is something we'd rather put off for a couple of months as we've just had to pay for the wedding and we're getting our doggy all sorted at the vets as she flew from the UK too. Thank you for your advice!

Edited August 1, 2010 by RUSSandRACHEL

[VanessaTony 3,567]

I know this may sound a silly question... but hey... Russ and I are supposed to be sending off our AOS packet this week but money is a little tight and I'm wondering whether we can put it off a little longer...

I arrived on my K1 on May 31st and my stamp in my passport is vaild until August 29th. We had a wonderful wedding on June 27th, so got married well within the 90 days. So, do we also have to file for AOS within the 90 days aswell? I know USCIS like you to do that, but I've heard of a few couples on here that waited it out a little longer and then got the 10 year green card as 2 years had passed since the marriage. While that's not quite what we plan to do (especially if its wrong) but does anyone really know what the law is regarding AOS and when are we oblidged to file by?

Many thanks!

It is okay to wait but important to remember that the immigrant is NOT protected by simply marrying you. If caught before filing AOS (and sometimes even after) they will be detained and sent before an immigration judge. The money involved with that is WAY more than $1010.

I personally waited about 5 months but I wouldn't recommend that. It has meant that I have been unable to work until now. It means you cannot leave the US or you will need to reapply for another visa to enter the US.

People who wait more than 2 years will also need to file an I-130 thus spending a further $355 (also one couple was recently denied because they waited so long and didn't have a bank account so now they're fighting that). If possible you should file ASAP. As someone who waited so long trust me when I say it's not nice to be concerned about ICE the whole time. It's not nice to avoid borders and know if I needed to go home I couldn't and I also HATED not working. The sooner you file, the sooner you can work and the sooner you can help out financially for paying for the doggies shots and the sooner you start that clock for ROC and USC

[JimVaPhuong 4,863]

I arrived on my K1 on May 31st and my stamp in my passport is vaild until August 29th. We had a wonderful wedding on June 27th, so got married well within the 90 days. So, do we also have to file for AOS within the 90 days aswell? I know USCIS like you to do that, but I've heard of a few couples on here that waited it out a little longer and then got the 10 year green card as 2 years had passed since the marriage. While that's not quite what we plan to do (especially if its wrong) but does anyone really know what the law is regarding AOS and when are we oblidged to file by?

Because the law doesn't cover every possible scenario, USCIS has had to improvise in some cases. This is a simplified summary of what the law is regarding a K1 visa entrant, and how USCIS handles it.

Because you arrived with a K1 visa, the law requires you to marry the petitioner within 90 days in order to be eligible to adjust status based on the K1. If the K1 entrant marries the petitioner after the 90 days have expired then they have to file an I-130 with the AOS application, just as if they'd entered with a tourist visa. If they don't get married, or marry someone other than the K1 petitioner, then they aren't eligible to adjust status based on the K1 - end of story.

There is a general requirement that an alien must have maintained their non-immigrant status in order to be eligible to adjust status. The law specifically states that this requirement does not apply to an immediate relative of a US citizen. Since you are now married to a US citizen, this would apply to you. This means you are eligible to adjust status even after your I-94 expires.

This is where it get's tricky...

The law only allows a K1 visa entrant to adjust to conditional resident status. The law also says that someone who has been married to a US citizen for more than two years at the time their adjustment of status is approved will be given unconditional permanent resident status. So what does USCIS do if a K1 visa entrant waits until they've been married for more than two years before applying for AOS?

USCIS hasn't been consistent about this. Sometimes they grant conditional resident status, according to the law. Sometimes they determine that the alien is no longer eligible to adjust based on the K1 because their marriage is more than two years old, and they can't grant conditional resident status under the law, so they require an I-130 just as they would from someone who came to the US with a tourist visa and married a US citizen. There have been a couple of recent cases here on VJ where K1's waited years to file AOS and USCIS required them to submit an I-130.

When a K1 entrant submits an AOS application, and that application is accepted by USCIS (not necessarily approved yet) then the K1 is granted a period of authorized stay while the AOS application is being adjudicated. This is true even if the I-94 had expired before filing the AOS application.

A K1 entrant who has not filed an AOS application by the time the I-94 expires is out of status. Technically, they could be deported. However, USCIS rarely initiates removal proceedings against someone who is clearly eligible to adjust status. This means USCIS is unlikely to come after you if your I-94 has expired but you haven't filed the AOS application yet. However, things can be different if you have an encounter with CBP or ICE. They could give you a hard time, or even bring you in front of an immigration judge for deportation without going through USCIS.

The prudent course is to file the AOS application as soon as you are able.

[RUSSandRACHEL 3]

Thank you for both of your advice, its very helpful!!! I know that the sooner we apply, the sooner I can work and travel. To be honest though, we have no intention of going back to England for a long time yet and we are nowhere near any borders. We also won't be travelling around the US anytime soon.

I didn't mean I was going to leave it for years, just maybe couple of weeks. And as for working, when I get my EAD I am only going to work part time eventually and will continue with my home business here that I built up in the UK anyway.

I just wanted to know whether I would be breaking the law by applying even one day after my I-94 has expired, cos its a bit of a grey area... It seems really strange that there is no 'set time' that you have to file within

Edited August 1, 2010 by RUSSandRACHEL

[VanessaTony 3,567]

Thank you for both of your advice, its very helpful!!! I know that the sooner we apply, the sooner I can work and travel. To be honest though, we have no intention of going back to England for a long time yet and we are nowhere near any borders. We also won't be travelling around the US anytime soon.

I didn't mean I was going to leave it for years, just maybe couple of weeks. And as for working, when I get my EAD I am only going to work part time eventually and will continue with my home business here that I built up in the UK anyway.

I just wanted to know whether I would be breaking the law by applying even one day after my I-94 has expired, cos its a bit of a grey area... It seems really strange that there is no 'set time' that you have to file within

Okay so NO definitely no timeline. It is extremely strange there's no set time but then as some states are different to others, its unfair to set a blanket timeline in case some states are worse. Does that makes sense? We have 90 days to get married, they'd have to change that to 40 days or something so we can file by I-94 deadline. Not everyone is okay with a court house wedding, add the name change stuff, waiting for the marriage certificate and all the rest and it could be extremely stressful and close to impossible for everyone to stick to an imposed deadline.

Anyway impt part of this all is NO DEADLINE. Just try and do it soon

[K and L 27]

And you may not want to travel to Arizona or on any highways that have inland CBP inspection stations until the AOS application has been filed.

Just for the record, Arizona is not the only state with inland CBP inspection stations - I've run into them in California, Arizona, New Mexico, and Texas. They're not always on interstates or highways, either.

[JimVaPhuong 4,863]

I just wanted to know whether I would be breaking the law by applying even one day after my I-94 has expired, cos its a bit of a grey area... It seems really strange that there is no 'set time' that you have to file within

It's not that there is or is not a "set time". It's that you remain eligible to adjust status as long as you are an immediate relative of a US citizen. It would be unfair to K1's if their eligibility to adjust status expired and they didn't impose similar limits for people who entered with other types of non-immigrant entry passes and married a US citizen.

And what would be a fair limit? How about 90 days after your non-immigrant entry authorization expired? That would mean a casual visitor from Canada who didn't even bother to get a visa would have 9 months after entering to adjust status, while a K1 would have only 6 months. Would that be fair?

Yeah, Congress didn't think so either. That's why the requirement that you have to maintain your non-immigrant status to be eligible to adjust status doesn't apply to immediate relatives of US citizens. It's a courtesy to US citizens which is written into the immigration law.

[Bobby+Umit 161]

I also recommend to get the AOS filed prior to the I-94 expiration - for the issues mentioned here in this post.

Positives of filing prior:

1. No issues with CBP/ICE since your in adjusting status mode.

2. No issues with working or travelling, since you now can get the EAD/AP - based on the AOS

3. You don't have to worry about your medical expiring (K-1) and having to do the whole thing over.

Negatives:

1. Possible issues with ICE/CBP - since you are pass your authorized stay period (there is a post on this forum where the couple had issues in Texas - same scenario - married, pass the 90 days, no AOS filed)

2. Overstay clock starts ticking, if you go over 180+ days, you will have issues with the AP (when you finally do the AOS), and if your AOS is denied, and your sent home, the overstay days (180+) count toward any bans coming back...

3. Can't work.

4. If you go past a year of your medical (from the K-1) - you will have to redo a complete one for the AOS. *means more money*

5. Longer before you can file for USC.

So sooner than later is better imho.

BTW - here is a good write up of the I-94. (explains the rules concerning the I-94)

[Kathryn41 3,205]

Sometimes it is not even possible to apply within the 90 days of the I-94 validity. Consider this situation - you enter on the K-1, plan a big wedding that takes time and get married on the last day or 2nd last day of the I-94's validity - a Saturday. You require the state registered marriage certificate to include in with the AOS application, so even if you had everything else ready to file you would not be able to get a state registered marriage certificate before the 90 days expired. So, as long as you have satisfied the requirements of the K-1 - getting married within 90 days - you do not need to file for the AOS within the same 90 days. It is in your best interest to do so, but is not always feasible.

The fee is a sizable amount and sometimes other immediate expenses make it seem a better plan to apply a few weeks or months later, so if this is your situation, you should be fine. Just realize that when the I-94 expires so does your legal status in the US. It 'shouldn't' cause you problems, (although it might) but you will want to remedy that situation as soon as you can so it is best if you make it a high priority and don't keep shuffling it back as other 'priorities' raise their heads. . As well, if you do have an emergency - a death in the family back in the UK - you will not be able to leave the US until you have either your Advance Parole document or your green card. This can become another unexpected emergency that changes your priorities as well.

Good luck.

Edited August 2, 2010 by Kathryn41