Coronavirus, cancelled flights, K-1 vs marry and AOS?

[Nat&Amy 623]

11 minutes ago, Khevinox said:

Should we get married ASAP and file AOS before the 90 day mark?

Forget the "90 day mark" concept. What determines fraud is intent to adjust while entering the US with a temporary visa, and this was not your case. Circumstances change and that is what AoS is for. Regardless, intent is determined at the PoE. Water under the bridge. Unless your wife lied to immigration at any point, there is no reason to believe your AoS will be tagged as fraudulent.

[rotodash 1]

1 hour ago, Mike E said:

In my unlicensed and non-degreed legal opinion, of you have her birth certificate and can find a County now that:

* is issuing marriage licenses

* can provide a marriage certificate before day 90

Thank you, everyone! We really appreciate the advice. I think we've decided to move forward with getting married and filing AoS. I've called the local probate offices here and they are still issuing marriage licenses (in person) and certificates (by mail).

 

Day 90 is April 11. That gives us 25 days. I feel like even through the mail we can get a marriage certificate by then, but what is the actual cutoff? Do we just need our marriage certificate dated within the 90 days, will they have to have received the I-130 and I-485 by then, or some sort of acceptance/other milestone?

[geowrian 22,336]

* Moved from K-1 P&P to AOS From Work, Student, and Tourist Visas *

 

6 minutes ago, rotodash said:

Thank you, everyone! We really appreciate the advice. I think we've decided to move forward with getting married and filing AoS. I've called the local probate offices here and they are still issuing marriage licenses (in person) and certificates (by mail).

 

Day 90 is April 11. That gives us 25 days. I feel like even through the mail we can get a marriage certificate by then, but what is the actual cutoff? Do we just need our marriage certificate dated within the 90 days, will they have to have received the I-130 and I-485 by then, or some sort of acceptance/other milestone?

There is no 90 day limit here to marry. That's for the K-1 only.

There is only the duration of stay authorized by CBP at POE, noted on the I-94. The suggestion is to file (USCIS goes by date received) before that expires to avoid accruing unlawful presence.

[rotodash 1]

14 minutes ago, geowrian said:

There is only the duration of stay authorized by CBP at POE, noted on the I-94. The suggestion is to file (USCIS goes by date received) before that expires to avoid accruing unlawful presence.

Okay yes that distinction makes sense. I guess that means we have about 21 days to get the marriage certificate and mail the forms. Too close for comfort. What's the risk of accruing unlawful presence? Once USCIS receives the forms, assuming it's after April 11, she would then no longer be here unlawfully, right?

[Mike E 11,726]

30 minutes ago, rotodash said:

Thank you, everyone! We really appreciate the advice. I think we've decided to move forward with getting married and filing AoS. I've called the local probate offices here and they are still issuing marriage licenses (in person) and certificates (by mail).

 

Day 90 is April 11. That gives us 25 days. I feel like even through the mail we can get a marriage certificate by then, but what is the actual cutoff? Do we just need our marriage certificate dated within the 90 days, will they have to have received the I-130 and I-485 by then, or some sort of acceptance/other milestone?

Congrats.  25 days is a nice cushion. 
 

The 90 day deadline I referred to the presumed authorized stay she has on her presence in the USA.  You can check her actual authorized stay from the CBP website.  
 

You want  the AOS packet received by USCIS and the NOA returned to you before her authorized stay expires. The NOA will serve as an extension of her authorized presence in the USA.  She won’t be able to do anything with it other than stay out of police, ICE, and CBP custody until she gets her EAD/AP combo card (which you should apply for at the same time and in the same packet as her AOS). 
 

Filling for  AOS after her authorized stay expires is something that should be (in my opinion) contemplated and executed only with the advice and expertise of a competent immigration attorney.  

Edited March 17, 2020 by Mike E

[geowrian 22,336]

6 minutes ago, rotodash said:

Okay yes that distinction makes sense. I guess that means we have about 21 days to get the marriage certificate and mail the forms. Too close for comfort. What's the risk of accruing unlawful presence? Once USCIS receives the forms, assuming it's after April 11, she would then no longer be here unlawfully, right?

The risk is the same as any other person who overstays - they are subject to removal if they are caught.

The likelihood of getting caught in a matter of days to couple weeks is pretty low (especially right now..most people are too busy dealing with COVID-19 to worry about this IMO), but it is above 0%. There have been cases where somebody has hit this. Not to scare you...as it did get worked out in the end...but just noting that it is possible just like any other overstayer.

The unlawful presence is not a bar for AOS in these circumstances. At the same time, it is against the TOS to advice or condone violating immigration law by overstaying. So the suggestion is to file before the I-94 expires.

Edit: Once properly filed, she stops accruing unlawful presence.

Edited March 17, 2020 by geowrian

[Mike E 11,726]

11 minutes ago, rotodash said:

Okay yes that distinction makes sense. I guess that means we have about 21 days to get the marriage certificate and mail the forms. Too close for comfort. What's the risk of accruing unlawful presence? Once USCIS receives the forms, assuming it's after April 11, she would then no longer be here unlawfully, right?

The risks are being arrested and locked up, deportation, and/or a ban. It is astonishing you are contemplating this.  You need a lawyer.  
 

If USCIS records the AOS as received before her authorized stay expires she will continue to be in the USA lawfully. 
 

Bluntly “shelter in place” orders are being made faster than Covid-19 is spreading. I suggest you get on with it versus trying to bargain and explore what ifs.  You have one viable path that you should focus on now.  Go get your marriage license.  

Edited March 17, 2020 by Mike E

[Orangesapples 1,954]

20 minutes ago, Mike E said:

The risks are being arrested and locked up, deportation, and/or a ban. It is astonishing you are contemplating this.  You need a lawyer.  
 

If USCIS records the AOS as received before her authorized stay expires she will continue to be in the USA lawfully. 
 

Bluntly “shelter in place” orders are being made faster than Covid-19 is spreading. I suggest you get on with it versus trying to bargain and explore what ifs.  You have one viable path that you should focus on now.  Go get your marriage license.  

No lawyer needed. USCIS will accept AOS even if she's here illegally. The only problem is being unlucky and somehow having ICE after you. A risk to be avoided if possible but not a bar to AOS. 

[ThomasNC1988 762]

Didn't read all the comments, but if it is acceptable to you to marry and wait for AOS I'd 100 percent go for it. I find it very unlikely you would run into issues and you are well withing the law.

[rotodash 1]

45 minutes ago, Mike E said:

The risks are being arrested and locked up, deportation, and/or a ban. It is astonishing you are contemplating this.  You need a lawyer.  
 

If USCIS records the AOS as received before her authorized stay expires she will continue to be in the USA lawfully. 

Sorry, I'm confused. We're not contemplating waiting and having her stay here unlawfully, we want to avoid that at all costs. My question is if we are able to get marriage certificate and file the 130/485 before her 90 days are up (25 days from now), but the NOA takes another 2-3 weeks, is she staying unlawfully during that time frame? Or does "USCIS records the AOS was received" something that happens once they just receive the forms in the mail? We recognize the risks of overstay are significant but weren't sure the timing of marriage/filing. 

Edited March 17, 2020 by rotodash

[geowrian 22,336]

4 minutes ago, rotodash said:

Sorry, I'm confused. We're not contemplating waiting and having her stay here unlawfully, we want to avoid that at all costs. My question is if we are able to get marriage certificate and file the 130/485 before her 90 days are up (25 days from now), but the NOA takes another 2-3 weeks, is she staying unlawfully during that time frame? Or does "USCIS records the AOS was received" something that happens once they just receive the forms in the mail? We recognize the risks of overstay are significant but weren't sure the timing of marriage/filing. 

USCIS goes by the date the packet is received. The only issue is you won't have evidence of this until you receive the NOA1.

[NikLR 13,220]

2 hours ago, Nat&Amy said:

Forget the "90 day mark" concept. What determines fraud is intent to adjust while entering the US with a temporary visa, and this was not your case. Circumstances change and that is what AoS is for. Regardless, intent is determined at the PoE. Water under the bridge. Unless your wife lied to immigration at any point, there is no reason to believe your AoS will be tagged as fraudulent.

The 90 day mark would mean she doesn't have any illegal time in the USA.

[Nat&Amy 623]

19 minutes ago, NikLR said:

The 90 day mark would mean she doesn't have any illegal time in the USA.

The way it was phrased, I understood OP was referring to the mythological rule of "only file AoS after waiting 90 days to show there was no immigrant intent". Since entrance was through a tourist visa, and the duration of allowed stay depends on what was granted at PoE, I did not connect the dots. In which case, to clarify: absolutely no need to wait 90 days to adjust status, and it is by far a better option to have a NOA1 while in authorized stay (be it 6 months, 3 or 1, depending on what i94 says). Accruing unauthorized stay is never a good idea.

[rotodash 1]

7 minutes ago, Nat&Amy said:

The way it was phrased, I understood OP was referring to the mythological rule of "only file AoS after waiting 90 days to show there was no immigrant intent". Since entrance was through a tourist visa, and the duration of allowed stay depends on what was granted at PoE, I did not connect the dots. In which case, to clarify: absolutely no need to wait 90 days to adjust status, and it is by far a better option to have a NOA1 while in authorized stay (be it 6 months, 3 or 1, depending on what i94 says). Accruing unauthorized stay is never a good idea.

Sorry for the confusion. Since this potential plan only occurred to us yesterday, I meant 90 days was the length of her authorized stay. With 25 days left I'm not sure we can get the NOA1 before then, but we should be able to get the forms delivered to USCIS by then as long as we can get marriage certificate in the next three weeks. We're going to try to get a marriage license this afternoon, have a small ceremony ASAP, and will have to mail in for the certificate as the magistrate courts/ceremonies are all closed for 30 days. 

[Khevinox 11]

12 minutes ago, rotodash said:

Sorry for the confusion. Since this potential plan only occurred to us yesterday, I meant 90 days was the length of her authorized stay. With 25 days left I'm not sure we can get the NOA1 before then, but we should be able to get the forms delivered to USCIS by then as long as we can get marriage certificate in the next three weeks. We're going to try to get a marriage license this afternoon, have a small ceremony ASAP, and will have to mail in for the certificate as the magistrate courts/ceremonies are all closed for 30 days. 

whatever you choose to do, goodluck with it all. let us know how it all ends.