K1 visa duration and filing for AOS after marriage?

[apgk 0]

I browsed through the guides here but could not get this information.

I am trying to find out what is the typical duration of the K1 visa or typically

what is stamped at the POE when arriving on K1 visa? is it like other routine

visitor visa - 6 months duration?

Basically I am trying to ascertain how much time I would have to marry

and file an AOS. Marriage needs to be prior to 90 day period is over; does

this mean that AOS has to be filed prior to 90 day period also?

[YuAndDan 153]

SEE Duplicate: http://www.visajourney.com/forums/index.php?showtopic=77271

[apgk 0]

SEE Duplicate: http://www.visajourney.com/forums/index.php?showtopic=77271

yes I posted here also, since some folks here have gone through the process

so wanted to get first hand information

You mention in other post that some people get delayed in collecting

all paperwork for AOS and end up filing after 90 days. Is that legit then?

Because the visa is over and the finacee is out of status? What is done

in this situation?

[Neonred 3,454]

I browsed through the guides here but could not get this information.

I am trying to find out what is the typical duration of the K1 visa or typically

what is stamped at the POE when arriving on K1 visa? is it like other routine

visitor visa - 6 months duration?

Basically I am trying to ascertain how much time I would have to marry

and file an AOS. Marriage needs to be prior to 90 day period is over; does

this mean that AOS has to be filed prior to 90 day period also?

No. AOS can be filed any time after marriage. Many people wait for several months for what ever reasons without consequences. It is best if you do not wait too long (might be hard to explain at an interview why you waited two years to file), but don't get all worried that you have to file within that same 90 day period.

[1HappyGuy 45]

First, the visa is stamped with a 90 day expiration at POE. Thereby indicating that she/he will be out of status in 90 days. You should insure that the marriage occurs within the 90 day period.

Many seem to delay filing for AOS, i.e. permanent status for some time after the marriage and the 90 days has passed. My question is why wait? You need to do this anyway and the sooner the better. I truly believe that the USCIS employees like to see people that are following the letter of the law and will make sure it goes well for them. The adjustment of status is much smoother than the K-1 application process. There are horror stories from some but most people don't have much problem adjusting status. Once the green card is issued, everything is easier.

You have a permanent spouse who can work legally and both of you can leave and return to America.

[payxibka 10,044]

First, the visa is stamped with a 90 day expiration at POE. Thereby indicating that she/he will be out of status in 90 days. You should insure that the marriage occurs within the 90 day period.

The I-94 is stamped with a 90 day expiration at the POE

[russ 1]

Many seem to delay filing for AOS, i.e. permanent status for some time after the marriage and the 90 days has passed. My question is why wait? You need to do this anyway and the sooner the better. I truly believe that the USCIS employees like to see people that are following the letter of the law and will make sure it goes well for them. The adjustment of status is much smoother than the K-1 application process. There are horror stories from some but most people don't have much problem adjusting status. Once the green card is issued, everything is easier.

You have a permanent spouse who can work legally and both of you can leave and return to America.

I don't think that filing for AOS after 90 days after entry to the US fails to comply with the letter of the law. Being married within 90 days is the key. Our AOS (based on K-1) was filed more than a year after the 90 days elapsed, and it wasn't an issue.

Even if you marry later, you can still file an I-130 along with the AOS, and you should still be fine.

In general though, it would be best to have everything ready and mail it within a few days of your wedding.

[Satellite 1]

I don't think that filing for AOS after 90 days after entry to the US fails to comply with the letter of the law. Being married within 90 days is the key. Our AOS (based on K-1) was filed

Exactly, because the law also states that marriage to a US citizen assuming you entered with inspection will forgive all prior overstays and unauthorized work. Thus making the 90 day issue mute. Marrying before 90 days offers the nice advantage of avoiding paying more money for an I-130. And filing for AOS ASAP speeds up the process of getting a work permit, property travel document (for entry back into the US), avoiding potential deportation issues, green card, and ultimately citizenship. For those whom these are not big concerns, the date of filing is truly irrelevant.

[slim 1,514]

Also, once married, the K-1 is technically "void" and the alien is out of status. (I'm surprised you didn't jump on this one, Satellite!) They are, however, allowed to stay by decree of the Attorney General because they're married to a U.S. citizen. (Still right, so far?)

They kind of fall into a "limbo" status at this time because the K-1 is set up specifically for the purpose of coming to the U.S. as a non-immigrant that becomes an immigrant within 90 days. It's further complicated when it comes to stuff like applying for Social Security cards, State IDs, taxes, even a name change after marriage.

Our situation was a little complicated. We married after about two months but didn't file for AOS for another two months. (Didn't have the money at the time.) Between the marriage and the issuance of the green card, we were unable to legally change her name (through Social Security) obtain a state ID (wouldn't issue any documents because she didn't have a valid visa) and basically couldn't do anything "legal" at all. We applied for her work authorization with the AOS packet, so once that arrived, we were able to get her name changed and the SSN card with the new name.

There is no penalty for waiting, but it does make it a little smoother if you apply in succession without delay.

[payxibka 10,044]

Also, once married, the K-1 is technically "void" and the alien is out of status. (I'm surprised you didn't jump on this one, Satellite!) They are, however, allowed to stay by decree of the Attorney General because they're married to a U.S. citizen. (Still right, so far?)

Actually the K-1 is "technically" void upon the expiration date or use (ie..entry into USA), whichever ocurs first. Upon entry, the I-94 becomes the controlling document and any dates on the K-1 are "moot".

[slim 1,514]

Actually the K-1 is "technically" void upon the expiration date or use (ie..entry into USA), whichever ocurs first. Upon entry, the I-94 becomes the controlling document and any dates on the K-1 are "moot".

Oh yeah? Tell that to everyone that checked the K-1 visa! They saw that 90-day date, and to them, it was all good! After that date.... she was illegal!

Seems no one outside the USCIS really knows anything about immigration documents. They have to call somebody who doesn't know and then that person has to call someone else who also doesn't know, and then in the end they say "well, since you guys are married, she can stay. But, since you don't have a paper saying when her status is good until, we can't do anything for you today."

I think because everyone's seen the movies where as long as you're married you can stay, they assume that's the only proof needed. In actuality, there's only one government agency that trains their personnel on the legality of immigration documents, and that's the same agency that issues them.

[payxibka 10,044]

Oh yeah? Tell that to everyone that checked the K-1 visa! They saw that 90-day date, and to them, it was all good! After that date.... she was illegal!

What 90 day date on the K-1 visa? The 90 day date is recorded on the I-94......

I agree that after once I-94 has expired you really have nothing of substance to indicate that they are legal (assuming timely marriage of course).

[russ 1]

Also, once married, the K-1 is technically "void" and the alien is out of status. (I'm surprised you didn't jump on this one, Satellite!) They are, however, allowed to stay by decree of the Attorney General because they're married to a U.S. citizen. (Still right, so far?)

They kind of fall into a "limbo" status at this time because the K-1 is set up specifically for the purpose of coming to the U.S. as a non-immigrant that becomes an immigrant within 90 days. It's further complicated when it comes to stuff like applying for Social Security cards, State IDs, taxes, even a name change after marriage.

Sat can correct me, but US Visas have exactly zero to do with the duration of legal stay in the US. Once inspected at the border, the duration of stay is determined by the date affixed to the I-94.

The K-1 is a single-entry six month visa which is void the moment it is used to enter the United States. Six months refers to the validity of the visa, not the stay. (This means entry must happen before it expires).

After 90 days (the authorized stay in the I-94), status in the US is granted by the Attorney General until the adjudication of the AOS petition. The alien is out of status between 90 days and the NOA1 of the AOS petition. As Sat stated, the period out-of-status is moot, as US law grants relief to alien spouses of US citizens who have been inspected at a border crossing and seek to adjust status.

State IDs are totally controlled by the laws and procedures of the State issuing them. These may (and do) conflict with Federal law. For instance, many state "Real ID" laws directly conflict with Federal law - in this case purposefully.

Sat also correctly stated that there is a risk of deportation proceedings during this out of status period. The risk is minimal, as a pending AOS to a US Citizen is sufficient to stay a deportation order. It is probably possible to end up being deported if you do not file an I-485, though assuming the marriage is otherwise valid, this is highly unlikely.

Even if you do somehow end up in INS detention for a deporation hearing, I'm relatively certain a competent immigration lawyer would file the AOS before showing up in court and be able to seek relief somehow. (Sat - any knowledge about how this would happen?) I suspect that having a viable legal argument that the I-485 would otherwise be approved given the facts of the case is sufficient. If you are convicted of a felony, all bets are off.

The key to using the I-485 without and I-130 is the marriage within 90 days. There is no time limit to adjust using a K-1 as the basis. (over 1 year in my case, though nothing in the law I know of prevents it from being 50 years). There are also no limits that I know of as to how many AOS petitions you can file based on the same K-1. (It may well be faster and cheaper to file a new AOS than to appeal one).

DISCLAIMER: I'm not a lawyer. I don't even play one on TV. This is not legal advice. In the US, that can only be provided by competent attorney, permitted to practice law in the relevant jurisdiction. Everything I have said above is less useful than lies and fairy tales.

Edited July 11, 2007 by russ

[Satellite 1]

Also, once married, the K-1 is technically "void" and the alien is out of status. (I'm surprised you didn't jump on this one, Satellite!)

I have seen this said on VJ many times, but what Russ and fwaguy are saying, I think they are correct, in that the I-94 becomes your document in terms of legal stay in the US upon entry and the visa is pretty much useless, but it does come into play for other minor issues like attempting to change status pursuant to an I-539 will be barred because you used a K visa to enter rather than some other allowable type.

They are, however, allowed to stay by decree of the Attorney General because they're married to a U.S. citizen. (Still right, so far?)

Yes, but only after filing for AOS, and not by the simple fact of marrying.

They kind of fall into a "limbo" status at this time because the K-1 is set up specifically for the purpose of coming to the U.S. as a non-immigrant that becomes an immigrant within 90 days.

I think the real limbo occurs for any dates after the expiration of the I-94 until receipt of the NOA1 for AOS.

Actually the K-1 is "technically" void upon the expiration date or use (ie..entry into USA), whichever occurs first. Upon entry, the I-94 becomes the controlling document and any dates on the K-1 are "moot".

I tend to agree with this as stated above.

Sat can correct me, but US Visas have exactly zero to do with the duration of legal stay in the US. Once inspected at the border, the duration of stay is determined by the date affixed to the I-94.

Agree as stated above.

It is probably possible to end up being deported if you do not file an I-485, though assuming the marriage is otherwise valid, this is highly unlikely.

Of course, but to get into ICE custody you pretty much need to commit a crime. And then depending on the crime even the I-485 filing won't help you stay off deportation.

Even if you do somehow end up in INS detention for a deportation hearing, I'm relatively certain a competent immigration lawyer would file the AOS before showing up in court and be able to seek relief somehow. (Sat - any knowledge about how this would happen?)

Typically people end up in custody for a crime or outstanding warrant (even for silly things like not showing up to court to pay a traffic ticket) or for green card holders when they travel and their felony conviction finally comes under the radar at the airport. Otherwise it is really hard to get picked up. Those employment raids are too far apart and we don't do random document checks like in Russia!

But once in custody, depending on the court docket, you are almost better off filing your I-485 with them, because the judge has jurisdiction over most matters once you are in court. And the adjudication is done right there and then in an hour or so at your individual hearing. But most likely your attorney and with permission of the government, the judge will move to close proceedings to let you continue the process with USCIS. There is really no advantage to filing your I-485 before you have your first master hearing, because there is no guarantee the government will agree to close proceedings to let you continue down that path (thus you wasted filing fees).

The other bad part of getting picked up by ICE, is that you must have a bond hearing to be released from custody in most situations and that will cost you at least the minimum at $1500 and only after that can you move to close proceedings. Or if you don't have the $1500 (you can ask to be released on your cognizance, very rare) or you can sit in custody and wait for your individual hearing (which could be a year later) and get your I-485 adjustment adjudicated that way!

As usual - PERSONAL OPINION not legal advice.

[russ 1]

Typically people end up in custody for a crime or outstanding warrant (even for silly things like not showing up to court to pay a traffic ticket) or for green card holders when they travel and their felony conviction finally comes under the radar at the airport. Otherwise it is really hard to get picked up. Those employment raids are too far apart and we don't do random document checks like in Russia!

One exception would be hanging out near the Mexican border and not looking "American" enough. In this case, you can be deported without a hearing. Not sure if this has happened to someone who entered on a K-1, but it would be a real pain getting back into the US. (This happens to citizens too!) Deportations without hearings smell like a huge violation of due process to me, though they do happen.