K1 with No AOS after a Year

[Gregory&Dyn 113]

My wife arrived in the US from the Philippines in November 2016. Long-story-short, we met in Kuwait in 2012 and spent the next four years working through her annulment and eventually her K1 process.

 

Two days before her arrival on a K1 I lost my job with the federal government in DC. The next eleven months proved to be a genuine struggle trying to reenter the work force. I spent all of my savings supporting us while looking for specialized work. When savings ran out, I began selling personal items as a means of survival. We eventually lost our home in the process.

 

We were married well within the required ninety days, but because of finances, we were unable to file her AOS packet. Finally, in November 2017 I received an official offer for a job in the private sector and will begin work next week. Our objective and priority is the AOS application.

 

Because we waited so long to file, do we face any hurdles in seeking approval? Can you offer any guidance / direction relevant to our situation? 

 

UPDATE: Because life is tragically unfair, my wife's father passed away tonight (November 12, 2017). He is back in the Philippines. Without AOS in motion, she has no way to return to the Philippines and then fly home to the US without reapplying for a spousal visa, does she?

Edited November 12, 2017 by Gregory&Dyn
Added date and changed a word

[caliliving 606]

She overstayed so she will trigger the bar once she leaves. Unfortunately, that is the chance she takes. It is a 3yr ban. So unless you want a huge hurdle in front of you, you need to have her wait here and apply for aos

[caliliving 606]

2 hours ago, Gregory&Dyn said:

My wife arrived in the US from the Philippines in November 2016. Long-story-short, we met in Kuwait in 2012 and spent the next four years working through her annulment and eventually her K1 process.

 

Two days before her arrival on a K1 I lost my job with the federal government in DC. The next eleven months proved to be a genuine struggle trying to reenter the work force. I spent all of my savings supporting us while looking for specialized work. When savings ran out, I began selling personal items as a means of survival. We eventually lost our home in the process.

 

We were married well within the required ninety days, but because of finances, we were unable to file her AOS packet. Finally, in November 2017 I received an official offer for a job in the private sector and will begin work next week. Our objective and priority is the AOS application.

 

Because we waited so long to file, do we face any hurdles in seeking approval? Can you offer any guidance / direction relevant to our situation? 

 

UPDATE: Because life is tragically unfair, my wife's father passed away tonight (November 12, 2017). He is back in the Philippines. Without AOS in motion, she has no way to return to the Philippines and then fly home to the US without reapplying for a spousal visa, does she?

My guidance is you apply for aos asap!!!! And once she gets it she can leave or once she gets her AP... 

An overstay of more then 180 days but less then 365 is 3yrs

An overstay more then 365 days is 10 years.

Again, this starts when she leave the cop try and triggers the bar. 

Edited November 12, 2017 by caliliving

[Murph4865 597]

48 minutes ago, caliliving said:

My guidance is you apply for aos asap!!!! And once she gets it she can leave or once she gets her AP... 

An overstay of more then 180 days but less then 365 is 3yrs

An overstay more then 365 days is 10 years.

Again, this starts when she leave the cop try and triggers the bar. 

I did not think a AOS had a time limit of filing it so how does a bar come into play if she does not leave and how has she overstayed?

[NikLR 13,220]

8 minutes ago, Murph4865 said:

I did not think a AOS had a time limit of filing it so how does a bar come into play if she does not leave and how has she overstayed?

OP asked if his wife could attend a funeral outside of the USA. Unfortunately she cannot without triggering a 3 year ban.  She has overstayed because she only had the first 90 days after entry as legal presence.  If it has been 365 days past that 90 day window has ended, she would have a 10 year ban.  

 

OP I am very sorry for your wife's loss.  I do not recommend that she leave the USA at this time.  

 

~~moved to AOS family based from k1~~

[Murph4865 597]

5 minutes ago, NikLR said:

OP asked if his wife could attend a funeral outside of the USA. Unfortunately she cannot without triggering a 3 year ban.  She has overstayed because she only had the first 90 days after entry as legal presence.  If it has been 365 days past that 90 day window has ended, she would have a 10 year ban.  

 

OP I am very sorry for your wife's loss.  I do not recommend that she leave the USA at this time.  

 

~~moved to AOS family based from k1~~

The OP clearly states they was married well with in the 90 day window so there has not been a overstay. Correct me if wrong.

[Hypnos 6,576]

25 minutes ago, Murph4865 said:

I did not think a AOS had a time limit of filing it so how does a bar come into play if she does not leave and how has she overstayed?

You're conflating two different things. 

 

(i) There is no time limit for a K-1 to file for AoS provided they married within 90 days of PoE... 

 

(ii)... But you're out of status from the day your I-94 expires if you don't file for AoS immediately. 

 

A K visa holder, the same as any nonimmigrant with a defined I-94 expiration date, can trigger a three year bar with 180-364 days of overstay, and a ten year bar with at least 365 days of overstay. These bars are triggered when the alien departs the US. 

 

Since the OP's wife hasn't yet filed for AoS then she has been accumulating overstay. Right now she'd trigger a three year bar, and around February 2018 she'd trigger a ten year bar. 

 

In this situation, the best advice would be to file for AoS immediately and then attempt to obtain emergency AP, which may or may not be granted. 

 

If she departs before filing for AoS then she won't be coming back to the US anytime soon, and will require a waiver to do so. 

 

It's a popular misconception that K visa holders don't accrue overstay as long as they marry their petitioner within 90 days of PoE. They certainly do. 

Edited November 12, 2017 by Hypnos

[Murph4865 597]

2 minutes ago, Hypnos said:

You're conflating two different things. 

 

(i) There is no time limit for a K-1 to file for AoS provided they married within 90 days of PoE... 

 

(ii)... But you're out of status from the day your I-94 expires if you don't file for AoS immediately. 

 

A K visa holder, the same as any nonimmigrant with a defined I-94 expiration date, can trigger a three year bar with 180-364 days of overstay, and a ten year bar with at least 365 days of overstay. These bars are triggered when the alien departs the US. 

 

Since the OP's wife hasn't yet filled for AoS then she has been accumulating overstay. Right now she'd trigger a three year bar, and around February 2018 she'd trigger a ten year bar. 

 

In this situation, the best advice would be to file for AoS immediately and then attempt to obtain emergency AP, which may or may not be granted. 

 

If she departs before filing for AoS then she won't be coming back to the US anytime soon, and will require a waiver to do so. 

So how long is a I-94 normally good for?

[Hypnos 6,576]

90 days. 

[Georgia16 2,858]

File AOS and EAD/AP right away and then get an infopass appointment for an emergency AP so she can leave and come back.

[EvieMN 105]

I'm really sorry about your wife's loss! Life is indeed unfair sometimes. A lot of people commented on that so I'm not gonna add anything more.

Just wanted to say that the fact that you haven't filed for AOS until now isn't gonna harm your chances. I've seen cases in which people didn't file for a few years because of financial issues. It happens. Good luck with your journey!

[geowrian 22,335]

19 hours ago, Murph4865 said:

The OP clearly states they was married well with in the 90 day window so there has not been a overstay. Correct me if wrong.

They qualify to file for AOS based on that. They still accrue overstay after 90 days, and a bar still kicks in starting at 180 days of overstay and leaving the US.

Overstay is ignored for AOS as the spouse of a USC, and the bar doesn't kick in until you exit the US, so there's nothing stopping you from AOSing late (not that I encourage it...waiting has caused much hardship in a number of cases).

 

If they file for AOS and get AP, she can then leave and re-enter on that without the bar kicking in. However, filing AOS + even trying for emergency AP likely isn't within the OP's timeline IMO.

 

She has a tough choice ahead. Sorry for you and your wife's loss, OP.

Edited November 13, 2017 by geowrian