what happen when k1 visa & 1-94 expires?

[iloveNY 0]

hi everyone...

what will happen if k1 visa and i-94 expires...i have not apply for AOS yet?

am i still legal to stay in US?

thanks in advance for your replies...

God bless us all

[amykathleen2005 441]

As long as you are married within the 90 days of entering you are fine. You can apply for AOS after your I-94 would have expired, it really doesn't matter except you are kind of statusless until you apply for AOS. You won't be in trouble or anything, but you might want to apply sooner rather than later to be able to get on with your life and be able to work.

[Jojo92122 1,924]

hi everyone...

what will happen if k1 visa and i-94 expires...i have not apply for AOS yet?

am i still legal to stay in US?

thanks in advance for your replies...

God bless us all

No, you will not be legal because you have no authorization to be in the US. A spouse of a US citizen does not have an automatic right to be in the US. That is why people have to petition for their spouses.

Once your K1 visa expires, you will be an illegal overstay. You cannot legally stay in the US. You cannot legally work in the US.

If you got marry, then your spouse can file an I-130 and I-485 for you to adjust your status. The illegal overstay will be forgiven. While the applications are pending, you can continue to be in the US.

Edited April 5, 2011 by Jojo92122

[amykathleen2005 441]

No, you will not be legal because you have no authorization to be in the US. A spouse of a US citizen does not have an automatic right to be in the US. That is why people have to petition for their spouses.

Once your K1 visa expires, you will be an illegal overstay. You cannot legally stay in the US. You cannot legally work in the US.

If you got marry, then your spouse can file an I-130 and I-485 for you to adjust your status. The illegal overstay will be forgiven. While the applications are pending, you can continue to be in the US.

You are incorrect on many points, if they have married in the 90 days and submit their paperwork they only need a I-485. They can stay as long as they like as they have followed the terms of the visa.

[Haarp425 26]

what will happen if k1 visa and i-94 expires...i have not apply for AOS yet?

am i still legal to stay in US?

Once your I-94 expires and you have not applied for AOS, you will start accumulating overstay. Your overstay stops accumulating once you apply for AOS. If your overstay is over 6 months you will banned from returning to the USA for 3 years. If your overstay is over 1 year then you will be banned from returning to US for 10 years. So, if you have accumulated over 6 moths or more, do not leave the USA until you get the GC.

So, you must file for AOS before your I-94 expires so that you will not accumulate any overstay (no gap between AOS and expiration of the I-94).

[CQ & CS 2]

She is legal as long as they get married within 90 days; this is the only requirement under K-1 and they have fullfilled it. She will be "Out of Status" or "statuless" as AmyKathleen2005 said if they do not AOS.

[JimVaPhuong 4,863]

She is legal as long as they get married within 90 days; this is the only requirement under K-1 and they have fullfilled it. She will be "Out of Status" or "statuless" as AmyKathleen2005 said if they do not AOS.

Not precisely. Getting married within 90 days is the only requirement in order to be eligible to adjust status based on a K1 visa. It doesn't mean you are "legal" if the I-94 expires. "Out of status" means you have no lawful status as defined in the INA - you're not a non-immigrant, you're not a permanent resident, you're not a citizen or a national of the US. You're an alien whose permission to be in the United States has expired. What separates you from someone who overstayed their visitor's visa is that you would be eligible to adjust status, even though your I-94 had expired.

As Haarp425 stated, you begin accumulating unlawful presence when the I-94 expires. You stop accumulating unlawful presence when the AOS petition is accepted, but that doesn't restore you to lawful status. What it does do is grant you permission to remain in the US until a decision is made on the AOS petition. In other words, you're "out of status" but not "unlawfully present".

[ryna 132]

Not precisely. Getting married within 90 days is the only requirement in order to be eligible to adjust status based on a K1 visa. It doesn't mean you are "legal" if the I-94 expires. "Out of status" means you have no lawful status as defined in the INA - you're not a non-immigrant, you're not a permanent resident, you're not a citizen or a national of the US. You're an alien whose permission to be in the United States has expired. What separates you from someone who overstayed their visitor's visa is that you would be eligible to adjust status, even though your I-94 had expired.

As Haarp425 stated, you begin accumulating unlawful presence when the I-94 expires. You stop accumulating unlawful presence when the AOS petition is accepted, but that doesn't restore you to lawful status. What it does do is grant you permission to remain in the US until a decision is made on the AOS petition. In other words, you're "out of status" but not "unlawfully present".

My wife's I-94 expired on 4/1. We also received the text notification that her AOS had been forwarded to National Benefits Center on 4/1 as well. We haven't seen the hard-copy NOA1 yet but I assume (this is the unknown) that the NOA1 date will be 4/1 (or maybe earlier.) If it is indeed 4/1, does this count as zero days of overstay or as 1 day (4/1)? If it is later for some reason and she has 3-4 days of overstay, would this matter in the case of traveling on an approved AP when she receives it?

I know there's a ban triggered at 180 days or more but would 1 day (or possibly 3-4 days) of overstay cause any problem upon returning if we take a trip outside of the U.S. before she receives her GC?

[Harpa Timsah 13,258]

I know there's a ban triggered at 180 days or more but would 1 day (or possibly 3-4 days) of overstay cause any problem upon returning if we take a trip outside of the U.S. before she receives her GC?

3 or 4 days of overstay won't be an issue for using AP. Relax

Edited April 5, 2011 by Harpa Timsah

[ryna 132]

3 or 4 days of overstay won't be an issue for using AP. Relax

Thanks, that's what I thought. I knew there wasn't a ban (3/10 year) but didn't know if it would cause a "Sorry, file for a new (CR-1) visa" situation.

[JimVaPhuong 4,863]

My wife's I-94 expired on 4/1. We also received the text notification that her AOS had been forwarded to National Benefits Center on 4/1 as well. We haven't seen the hard-copy NOA1 yet but I assume (this is the unknown) that the NOA1 date will be 4/1 (or maybe earlier.) If it is indeed 4/1, does this count as zero days of overstay or as 1 day (4/1)? If it is later for some reason and she has 3-4 days of overstay, would this matter in the case of traveling on an approved AP when she receives it?

I know there's a ban triggered at 180 days or more but would 1 day (or possibly 3-4 days) of overstay cause any problem upon returning if we take a trip outside of the U.S. before she receives her GC?

Status expires at the END of the day stamped on the I-94. The period of authorized stay begins the moment the AOS petition is accepted. It sounds like your petition was accepted before the I-94 expired, so there would be no overstay.

Please don't misunderstand my previous statement. At the one extreme, there are aliens in the US who are completely in lawful status, having entered with a visa and not overstayed. At the other extreme, there are aliens standing in front of an immigration judge facing deportation. In between there are a lot of shades of gray. My statement was in response to a post that implied that a K1 who married within 90 days was "legal" by virtue of the fact that they had married within the required window of time, which is not true. When their I-94 expires then they are just as "illegal" as someone who overstays any other sort of non-immigrant visa. The distinct difference, as I pointed out, is that the K1 is eligible to adjust status. It is the stated policy of DHS not to initiate removal proceedings against someone who is clearly eligible for relief, and a K1 who married within the 90 day window would fall into this category. If you happened to encounter a CBP or ICE officer then they might jack you around for a while, but once it's established that you're eligible to adjust status then they'll usually turn you loose, with an admonishment to get the AOS filed as soon as possible. Someone who overstayed any other sort of non-immigrant visa, and wasn't eligible to adjust status, would probably have a date with an immigration judge. Someone who overstayed a Visa Waiver Program entry would probably find themselves on the next plane home.

I don't know what the actual statistics are, but I would guess that a substantial portion of K1's do not submit the AOS before their I-94 expires. The overwhelming majority of those people have no problems whatsoever as a result of their overstay. The overstay is irrelevant in adjudicating their adjustment of status.

The rules for using AP are pretty straightforward. If the CBP officer doesn't find any inadmissibility when you present yourself for reentry then they'll admit you back into the US. If you didn't accumulate 180 days or more of unlawful presence then you wouldn't be inadmissible on that basis. There would be no practical difference between 1 day and 179 days of overstay. The rules change dramatically after 180 days.

[Harpa Timsah 13,258]

There would be no practical difference between 1 day and 179 days of overstay. The rules change dramatically after 180 days.

Jim, a lot of posters here claim that CBP might use their discretion to deny someone who has a lot of overstay, but not yet an official ban (say 5.5 months of overstay). I think for the most part it's general scare tactics and paranoia, but I too would be afraid to travel with 5.5 months of overstay, but perhaps I have succumbed to the paranoia. Do you have any insight on the "discretionary denial" claim with valid AP and no official ban?

[Barbara J 115]

No, you will not be legal because you have no authorization to be in the US. A spouse of a US citizen does not have an automatic right to be in the US. That is why people have to petition for their spouses.

Once your K1 visa expires, you will be an illegal overstay. You cannot legally stay in the US. You cannot legally work in the US.

If you got marry, then your spouse can file an I-130 and I-485 for you to adjust your status. The illegal overstay will be forgiven. While the applications are pending, you can continue to be in the US.

Yeah as Amykathleen said you are wrong on so many points here.

[Bobby+Umit 161]

Jim, a lot of posters here claim that CBP might use their discretion to deny someone who has a lot of overstay, but not yet an official ban (say 5.5 months of overstay). I think for the most part it's general scare tactics and paranoia, but I too would be afraid to travel with 5.5 months of overstay, but perhaps I have succumbed to the paranoia. Do you have any insight on the "discretionary denial" claim with valid AP and no official ban?

CBP can stop anyone, regardless of how much overstay they have, at their discretion, and deny them entry. (this isn't a ban, just a denied entry - next trip - you may breeze through)

Even if you have a valid AP, that alone does not guarantee your passage through CBP. (There are cases where people had enough overstay to trigger a ban, they received the AP, but were denied upon re-entry - due to the fact the ban does not kick in till you attempt to re-enter).

5.5 months of overstay, I would stick to playing it safe and wait till I have the greencard, imo.

[iloveNY 0]

thank you so much guys for all your replies..

we're married within 90 as the K-1 requires..

my i-94 will expire on the 16th of this month

and my visa will expire next month.. we're not

ready yet to apply for AOS because of some

circumtances...

have a nice day to all & GOd bless