If I-485 is returned, is my fiance considered out of status?

[AlbertEPT 0]

My fiancee entered the US on a K-1 visa on June 1st, 2011. It expires August 31, 2011. I just wrapped up all of the paperwork and am going to send her application by Friday. If USCIS sends back the application for any reason, will she be considered out of status after August 31st? Or is she assigned a case number when she sends her first submission, and is not considered out of status?

Thank you!

[Harpa Timsah 13,258]

She would be out of status. However, any out-of-status days are irrelevant/forgiven when the GC is approved.

[Gary and Alla 3,694]

My fiancee entered the US on a K-1 visa on June 1st, 2011. It expires August 31, 2011. I just wrapped up all of the paperwork and am going to send her application by Friday. If USCIS sends back the application for any reason, will she be considered out of status after August 31st? Or is she assigned a case number when she sends her first submission, and is not considered out of status?

Thank you!

What expires August 31?

The visa was cancelled when she entered the US it only expires if you do not enter the US. It was replaced by the I-94 and you must be married before the expiration date on the I-94

As long as you marry before then, there is no particular deadline to file for AOS.

Edited August 16, 2011 by Gary and Alla

[Dave&Roza 748]

If you really want to analyze this even more, once married on the K-1 visa you are out of status until the GC is approved. So she has been out of status since the day of the wedding. File the AOS and do not worry about such trival things. Instead begin building that file for ROC that will need to be done 2 years after the GC arrives minus 90 days.

Good luck on the AOS,

Dave

[milimelo 4,499]

Moving to AOS from family based visa.

[VanessaTony 3,567]

If you really want to analyze this even more, once married on the K-1 visa you are out of status until the GC is approved. So she has been out of status since the day of the wedding. File the AOS and do not worry about such trival things. Instead begin building that file for ROC that will need to be done 2 years after the GC arrives minus 90 days.

Good luck on the AOS,

Ummm no. You are only out-of-status once the I-94 expires and until the AOS is received by USCIS and processed (NOA1 issued). Marriage doesn't make you out-of-status. I don't know where you heard that :S

[AlbertEPT 0]

What expires August 31?

The visa was cancelled when she entered the US it only expires if you do not enter the US. It was replaced by the I-94 and you must be married before the expiration date on the I-94

As long as you marry before then, there is no particular deadline to file for AOS.

Her permission for her current I-94 expires on August 31st. I am submitting her I-485 application package tomorrow. If for some reason, they send something back, is she considered illegally in the country?

[AlbertEPT 0]

Ummm no. You are only out-of-status once the I-94 expires and until the AOS is received by USCIS and processed (NOA1 issued). Marriage doesn't make you out-of-status. I don't know where you heard that :S

I think I my post was confusing.

My fiancee entered the USA on 6/01/2011. Her I-94 only gives her permission to be here until August 31, 2011.

We married on 6/14/2011.

I am submitting her I-485 application package tomorrow.

If USCIS sends back the package for any reason, is she considered in the country illegally?

Or once you marry, the I-94 is valid as long as your present your marriage certificate?

Thanks!

[JimVaPhuong 4,863]

I think I my post was confusing.

My fiancee entered the USA on 6/01/2011. Her I-94 only gives her permission to be here until August 31, 2011.

We married on 6/14/2011.

I am submitting her I-485 application package tomorrow.

If USCIS sends back the package for any reason, is she considered in the country illegally?

Or once you marry, the I-94 is valid as long as your present your marriage certificate?

Thanks!

Yes, if the I-94 is expired and she doesn't have a pending I-485 or green card, then she's in the country illegally.

When USCIS accepts an I-485 then the intending immigrant is in a period of authorized stay. It doesn't change their status - she'd still be out of status if her I-94 had expired - but she wouldn't be in the US illegally. She'd have permission from USCIS to be here.

If USCIS rejects the I-485 and returns it then they never actually accepted it, which means no period of authorized stay has been granted.

If USCIS accepts the I-485 and subsequently denies it, then the period of authorized stay ends on the day the I-485 was denied.

None of this stuff changes her eligibility to adjust status. An immediate relative of a US citizen does not need to have current non-immigrant status in order to adjust status. Even a denied I-485 wouldn't change this unless it was denied with prejudice, meaning they found her ineligible to adjust status. Most of the time, when an I-485 is denied for a K1 it's usually without prejudice because of a failure to submit the required documents or evidence, or not showing up for an appointment with USCIS.

Marriage doesn't change the expiration date of the I-94. However, for a K1 visa holder the marriage does make them eligible to adjust status. If her status expires, and she isn't in a period of authorized stay because of a pending I-485, then she could get harassed by CBP or ICE if she happens to have an encounter with them. However, DHS policy is not to initiate removal proceedings against someone who is eligible to adjust status. Still, getting jacked around by CBP or ICE, and potentially spending a day or two in an immigration holding cell, is not a pleasant experience. Avoid international terminals or border checkpoints unless she's got documents to show she has permission to be here.

Edited August 17, 2011 by JimVaPhuong

[TBoneTX 45,498]

As usual, Jim's advice is dead-nuts accurate.

To fend off the notoriously humorless CBP/ICE agents in the event of an encounter, I had my wife carry with her a photocopy of our cover-letter (with the payment check) for AOS, and our marriage certificate, until we got the NOA1 (letter of receipt from USCIS). When the NOA1 came, she paired that with the marriage certificate and carried them until the green card came. I believe in taking no chances and wanted every possible scrap of evidence to whip out in defense if we were ever challenged or harassed. Fortunately, that never happened.

[Aztec&Taino 144]

I think I my post was confusing.

My fiancee entered the USA on 6/01/2011. Her I-94 only gives her permission to be here until August 31, 2011.

We married on 6/14/2011.

I am submitting her I-485 application package tomorrow.

If USCIS sends back the package for any reason, is she considered in the country illegally?

Or once you marry, the I-94 is valid as long as your present your marriage certificate?

Thanks!

If you are already married, why are you still calling her your fiancee? Send the AOS as soon as you can. Her status will be pending AOS approval.

[bigdog 376]

My fiancee entered the US on a K-1 visa on June 1st, 2011. It expires August 31, 2011. I just wrapped up all of the paperwork and am going to send her application by Friday. If USCIS sends back the application for any reason, will she be considered out of status after August 31st? Or is she assigned a case number when she sends her first submission, and is not considered out of status?

Thank you!

[bigdog 376]

After your K1 visa entry you have 90 days to marry, As long as you marry in the 90 days OK. File your AOS I485 ASAP to get the ball rolling, be sure to file for EAD ans AP at the same time. After your entry and marriage and filing you are considered to be here on the approval of the attorney general. Even in AZ they will extend your drivers license to the date shown on your receipt, which has the A #, should be good for one year.

[Harsh_77 718]

Her permission for her current I-94 expires on August 31st. I am submitting her I-485 application package tomorrow. If for some reason, they send something back, is she considered illegally in the country?

If you are married within 90 days of her Entry and then filed for AOS - if USCIS returns something back or would ask for additional documents would not make her illegal.

She might be out of status for little time, but that should not be an issue.

[JimVaPhuong 4,863]

If you are married within 90 days of her Entry and then filed for AOS - if USCIS returns something back or would ask for additional documents would not make her illegal.

She might be out of status for little time, but that should not be an issue.

Semantics are important here. If USCIS accepts the I-485 then the period of authorized stay begins - the alien is not in the US illegally. If USCIS rejects the I-485 and sends it back then no period of authorized stay is granted. If the alien's I-94 has expired then, technically, they are in the US illegally. If USCIS accepts the I-485, and subsequently issues an RFE for additional evidence, the period of authorized stay is not affected. Once USCIS accepts the I-485 then the period of authorized stay lasts until the I-485 is either approved or denied, but the I-485 has to be accepted first.

In a nutshell:

I-485 returned: No period of authorized stay. Alien is in the US illegally when their I-94 expires.

I-485 accepted: Period of authorized stay granted until the I-485 is either approved or denied.