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dnddus88

short trip to overseas.. does 90 day rule reset?

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please give me some advise. I'm kinda in a tricky situation. I'm a U.S. citizen and my wife is foreign national who came to the U.S. with her J visa. So this is the story.. She came to the U.S. on her J1 visa without 2 year home country requirement as a visiting scholar in mid May. We knew each other from college and met again after she came to the U.S. and decided to get married. We went overseas for our family reception in September and came back to U.S.  and got married immediately (she came back with her J1 visa which is still valid). I'm wondering if that short trip to oversea would reset her 90 day. Her initial entry for the particular J1 visa and the marriage date is more than 90days but the marriage took place shortly after her last entry to the U.S. I'm also thinking about filing concurrently in October and wonder if it is a bad idea. Thanks

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As long as she did not enter with intent to stay, she can file fore AOS at any time., There is no 90 days rule for AOS.


Timelines:

Spoiler

AOS (I-485 + I-131 + I-765):

9/25/17: sent forms to Chicago

9/27/17: received by USCIS

10/4/17: NOA1 electronic notification received

10/10/17: NOA1 hard copy received. Social Security card being issued in married name (3rd attempt!)

10/14/17: Biometrics appointment notice received

10/25/17: Biometrics

1/2/18: EAD + AP approved (no website update)

1/5/18: EAD + AP mailed

1/8/18: EAD + AP approval notice hardcopies received

1/10/18: EAD + AP received

9/5/18: Interview scheduled notice

10/17/18: Interview

10/17/18: Approved

?/?/?: Green card received

 

K-1:

Spoiler

I-129F

12/1/17: sent

12/14/17: NOA1 hard copy received

3/10/17: RFE (IMB verification)

3/22/17: RFE response received

3/24/17: Approved!

3/30/17: NOA2 hard copy received

 

NVC

4/6/2017: Received

4/12/2017: Sent to Riyadh embassy

4/16/2017: Case received at Riyadh embassy

4/21/2017: Request case transfer to Manila, approved 4/24/2017

 

K-1

5/1/2017: Case received by Manila (1 week embassy transfer??? Lucky~)

7/13/2017: Interview: APPROVED!!!

7/19/2017: Visa in hand

8/15/2017: POE

 

 

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There’s no 90 day rule on a J visa. If she entered without intent to stay and you just happened to get married you can file for AOS. She won’t be allowed to leave the country until either she gets EAD/AP card or aos process is done. If she entered the country for the purpose of getting married she has to go back to her country before the date stamped on her passport and you file for CR1 and bring her on an immigrant visa. 

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3 minutes ago, geowrian said:

As long as she did not enter with intent to stay, she can file fore AOS at any time., There is no 90 days rule for AOS.

Thanks. I'm just worried that they would deny her AOS based on "misrepresentation of intent". A lot of people around me just told me about this 90 day rule and I'm getting freaked out because our marriage date is pretty close to her last entry to the U.S. on her J1 visa

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2 minutes ago, TNJ17 said:

There’s no 90 day rule on a J visa. If she entered without intent to stay and you just happened to get married you can file for AOS. She won’t be allowed to leave the country until either she gets EAD/AP card or aos process is done. If she entered the country for the purpose of getting married she has to go back to her country before the date stamped on her passport and you file for CR1 and bring her on an immigrant visa. 

Obviously she did not enter with the intent to stay on her J1 visa when she initially came to the U.S. we happened to meet again and fell in love. I'm worried about the trip overseas that took place after we decided to get married.  

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2 minutes ago, dnddus88 said:

Obviously she did not enter with the intent to stay on her J1 visa when she initially came to the U.S. we happened to meet again and fell in love. I'm worried about the trip overseas that took place after we decided to get married.  

Ok that’s what we mean by entering the country with intent to stay. The only entry that matters is the last entry she has made in the US. Were you already married? What did she say the purpose of this trip was when she last entered the US (that means the last time she left US territory to go anywhere and came back). If she was married already or if she was entering the country knowing she was gonna get married then she has to go back by the date on her passport and file for an immigrant visa. 

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11 minutes ago, TNJ17 said:

Ok that’s what we mean by entering the country with intent to stay. The only entry that matters is the last entry she has made in the US. Were you already married? What did she say the purpose of this trip was when she last entered the US (that means the last time she left US territory to go anywhere and came back). If she was married already or if she was entering the country knowing she was gonna get married then she has to go back by the date on her passport and file for an immigrant visa. 

She was not married. We got married after we came back from overseas. 

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1 minute ago, dnddus88 said:

She was not married. We got married after we came back from overseas. 

Did you know you were gonna get married before she entered? It honestly sounds like you did because you said went overseas for a family reception. That proves intent. 

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24 minutes ago, dnddus88 said:

Obviously she did not enter with the intent to stay on her J1 visa when she initially came to the U.S. we happened to meet again and fell in love. I'm worried about the trip overseas that took place after we decided to get married.  

It's not the initial entry but her most recent entry that matters. Did she come on her last entry intending to stay?


Timelines:

Spoiler

AOS (I-485 + I-131 + I-765):

9/25/17: sent forms to Chicago

9/27/17: received by USCIS

10/4/17: NOA1 electronic notification received

10/10/17: NOA1 hard copy received. Social Security card being issued in married name (3rd attempt!)

10/14/17: Biometrics appointment notice received

10/25/17: Biometrics

1/2/18: EAD + AP approved (no website update)

1/5/18: EAD + AP mailed

1/8/18: EAD + AP approval notice hardcopies received

1/10/18: EAD + AP received

9/5/18: Interview scheduled notice

10/17/18: Interview

10/17/18: Approved

?/?/?: Green card received

 

K-1:

Spoiler

I-129F

12/1/17: sent

12/14/17: NOA1 hard copy received

3/10/17: RFE (IMB verification)

3/22/17: RFE response received

3/24/17: Approved!

3/30/17: NOA2 hard copy received

 

NVC

4/6/2017: Received

4/12/2017: Sent to Riyadh embassy

4/16/2017: Case received at Riyadh embassy

4/21/2017: Request case transfer to Manila, approved 4/24/2017

 

K-1

5/1/2017: Case received by Manila (1 week embassy transfer??? Lucky~)

7/13/2017: Interview: APPROVED!!!

7/19/2017: Visa in hand

8/15/2017: POE

 

 

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1 minute ago, TNJ17 said:

Did you know you were gonna get married before she entered? It honestly sounds like you did because you said went overseas for a family reception. That proves intent. 

We did not know that would be a problem since her initial entry was not for marriage, we just went to see the family before we got married and came back. 

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14 minutes ago, dnddus88 said:

We did not know that would be a problem since her initial entry was not for marriage, we just went to see the family before we got married and came back. 

As others have mentioned, her first entry on whatever visa does not matter any more!

What matters is her most recent entry and from what you said, you had the intent to get married right after her recent entry!

With that AOS is not an option

She has to go back to her country and you file a I130 petition 

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Her most recent entry was with the intent to marry. She must leave and then re-enter on the proper visa. What country is she from?  It will, most likely, take 12+ months. Good luck and congratulations on your marriage!  

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I'm no expert on this but could OP not file I-130 the same as if she were not here and have her finish the process in her home country which would only require a short time apart? That way she is here on a valid visa and gets a new visa that will let her stay or did I miss something?

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People are telling you that because you said your most recent entry was immediately before the wedding. That will look like you came to the US with intent to marry. If it was spread apart more, you may have had some wiggle room there. It is about your most recent entry and stamp, not the original intent behind the J1.

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10 hours ago, dnddus88 said:

We did not know that would be a problem since her initial entry was not for marriage, we just went to see the family before we got married and came back. 

Yeah you keep saying initial entry, that’s not a thing. It doesn’t matter if you leave the country to go to Canada for two days or a year in Europe. You’re still ending the purpose of that trip and when you enter it again it’s a brand new trip. She left and entered with intent to marry. Your course of action now is file for CR1. She leaves by the date on her passport and waits out her interview in her country. Takes around 16 months. If she stays she risks an overstay and a misinterpretation issue which could lead to being permanetely banned from the United States. Not really worth the risk. 

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