What is the status after i-94 expires (split)

[Chica79 15]

What happens if the - i-94 expires before 485 is completed.  Will my spouse be illegal?  Brought him over on K1.  We are married now.

[Crazy Cat 39,680]

1 minute ago, Chica79 said:

What happens if the - i-94 expires before 485 is completed.  Will my spouse be illegal?  Brought him over on K1.  We are married now.

Once an applicant submits a proper I-485, he/she will be granted "authorized stay" in the US until the I-485 is either approved or denied.

Note:  "Authorized Stay" is not a legal status, but the applicant will not accrue unlawful presence during this time.

Edited July 6, 2021 by Lucky Cat

[Chica79 15]

Just now, Lucky Cat said:

Once an applicant submits a proper I-485, he/she will be granted "authorized stay" in the US until the I-485 is either approved or denied.

How long will it take to get this authorized stay?

[Crazy Cat 39,680]

Just now, Chica79 said:

How long will it take to get this authorized stay?

Your evidence will be the receipt notice for submission of the I-485.  It will likely take several weeks.

[Dashinka 23,382]

13 minutes ago, Chica79 said:

What happens if the - i-94 expires before 485 is completed.  Will my spouse be illegal?  Brought him over on K1.  We are married now.

Technically, when the I94 expires the immigrant starts to accrue unlawful presence, however that is forgivable for an immediate relative such as a spouse once the AOS package is submitted.  There is no actual time requirement to file the I485 after a K1 marriage, and we often hear stories of people waiting a year or more before they file, however that can lead to problems.  The best course is to try and file for AOS soon after the marriage and if possible prior to the I94 expiring to avoid any issues.  There are stories out there where people got called before an IJ after something like a minor traffic incident where they were asked for proof of legal status and they had not filed the I485 yet.  I believe the IJ told them to file the I485 ASAP.

[Mike E 11,727]

1 hour ago, Chica79 said:

What happens if the - i-94 expires before 485 is completed.  Will my spouse be illegal?  Brought him over on K1.  We are married now.

As I read more cases involving ICE/CBP detaining aliens at various stages the I-485 process and the timing of that filing with respect to the expiration of the I-94 this is my current thinking / understanding: 

 

* Aliens with no break in authorized presence are never illegal: Neither CBP (at an internal check point within 100 miles of an international border) nor ICE has any legal authority to detain or apprehend the alien beyond the normal check point processing that even US citizens are forced to experience.  
 

* Aliens with any break in authorized presence are illegal (CBP/ICE have authority to derail or apprehend) until they become LPRs or are readmitted for entry into the USA at a lawful port of entry.  
 

Thus it is best to file I-485  before the I-94 expires, and have proof of the filing such as a USPS tracking number.  This avoids a break in authorized presence.   Feel free to be somewhere in the USA where CBP or ICE are known to be.  Wanna go to Roswell to learn the true about UFOs? Enjoy.  

If I-485 is filed after the I-94 is expired, the alien is illegal but has authorized presence.  Even after filing I-485,  avoid  encounters with CBP and ICE until the I-485 is decided.  If you have an Advance Parole document I believe encounters with CBP are safe, but no so sure about ICE.  Consider delaying  that trip to New Mexico.  

If the I-485 is denied the spouse’s authorized presence will terminate (typically in 33 days from the date of the denial) unless an appeal is filed or in some cases a new I-485 is filed that addresses the reason for the denial (typically for denials due to the petitioner’s income being insufficient).  

 

1 hour ago, Chica79 said:

How long will it take to get this authorized stay?

It is immediate upon filing the I-485.  Never file an I-485 without proof of mailing: USPS Priority Mail is the minimum bar and at under $10 for a flat rate mailing it is inexpensive ICE insurance.  Ideally you get the actual receipt for the filing before the I-94 expires.  

[Ontarkie 13,968]

~~Hijack post and related replies split off to there own threads. Please do not post questions for your own case in other members threads.~~

[HRQX 4,145]

On 7/6/2021 at 8:23 AM, Mike E said:

until they become LPRs or are readmitted for entry into the USA at a lawful port of entry.

Regardless if there was a gap or not, upon presenting the I-485 NOA1 neither a BP agent (at an internal checkpoint) nor an ICE agent overrule the Secretary of Homeland Security. https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm40-external.pdf

Edited July 15, 2021 by HRQX

[Mike E 11,727]

3 hours ago, HRQX said:

Regardless if there was a gap or not, upon presenting the I-485 NOA1 neither a BP agent (at an internal checkpoint) nor an ICE agent overrule the Secretary of Homeland Security. https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm40-external.pdf

 

 

[HRQX 4,145]

25 minutes ago, Mike E said:

 

 

That is an outlier where ICE blatantly didn't even follow their own policies. "They never actually registered my case with the court so the court had no idea what was going on. ICE and court weren't communicating."

 

In that case ICE did not "overrule the Secretary of Homeland Security." They improperly subverted his authority.

[Mike E 11,727]

30 minutes ago, HRQX said:

That is an outlier where ICE blatantly didn't even follow their own policies. "They never actually registered my case with the court so the court had no idea what was going on. ICE and court weren't communicating."

 

In that case ICE did not "overrule the Secretary of Homeland Security." They improperly subverted his authority.

Whether that is true or not, it doesn’t change the practical reality