K1 visa duration and filing for AOS after marriage?

[Satellite 1]

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.

I was pretty sure they at least finger print them and take down their names. Normally in such a situation you get an expedited removal, which is still some sort of hearing / due process albeit all in one day. Held unconstitutional for a green card holder, see LANDON v. PLASENCIA, 459 U.S. 21 (1982).

In some cases this is advantageous, because prior removal interrupts benefits for cancellation of removal especially for those who want to get it based on 10 years continuous presence. Thus if weren't "officially" deported you are still eligible.

Update on the K1 status:

I had to look this up in my notes. The term out of status is really two prong

1. unlawfully present (staying beyond I-94)

2. out of status (not doing what you said you are going to do in the US). i.e. working while on a tourist visa.

So back to the question at hand, you are technically admitted pursuant to your K1 visa and given an I-94 valid for 90 days in K1 status. You are out of status as soon as you marry or technically speaking no longer seeking marriage to the petitioner. Good luck proving that one. But simply put, marrying the petitioner makes you out of status before receiving you NOA1 for AOS, but technically lawfully present until the I-94 expires.

I hope that makes sense.

Edited July 11, 2007 by Satellite

[russ 1]

Update on the K1 status:

I had to look this up in my notes. The term out of status is really two prong

1. unlawfully present (staying beyond I-94)

2. out of status (not doing what you said you are going to do in the US). i.e. working while on a tourist visa.

So back to the question at hand, you are technically admitted pursuant to your K1 visa and given an I-94 valid for 90 days in K1 status. You are out of status as soon as you marry or technically speaking no longer seeking marriage to the petitioner. Good luck proving that one. But simply put, marrying the petitioner makes you out of status before receiving you NOA1 for AOS, but technically lawfully present until the I-94 expires.

I hope that makes sense.

Actually, this raises another question for me. It sounds like there is no way to avoid being out of status with a K-1, since there will always be some gap between the marriage and the reciept of the NOA1 from the AOS.

What section of the US Code of Federal Regulations (I assume that covers it) says that the I-94 status ends at marriage? Lawfully present is the important part in any case - it seems to me that being lawfully present is an affirmative defense to deportation, absent any lawful reason for it to be revoked.

This is not purely an academic question - laws do change, any many aliens have entered the US in the past before AOS was even necessary, based upon marriage to a USC. A friend of mine is married to his wife of 40+ years, and they recently ran into immigration problems. She had trouble proving that she was here legally. Back then, this was all done at the border upon entry, based upon the marriage and that was it.

[Satellite 1]

What section of the US Code of Federal Regulations (I assume that covers it) says that the I-94 status ends at marriage? Lawfully present is the important part in any case - it seems to me that being lawfully present is an affirmative defense to deportation, absent any lawful reason for it to be revoked.

Finding the corresponding regulation in the federal register will be a hell of a task. That was part of my duties at the immigration firm I worked at. Note the past tense as of June. I found a higher paying job doing fraud and whistleblower work so it was an easy decision. We had a practioners CD from AILA which allowed one to search simple things like I-94, out of status, etc. and find the corresponding CFR, INA, and case law if any. To open up a book right now to find it would be too much work, I have to study for my Federal Income Tax final. Another subject that I find very fascinating.

But anyway look at the gallery picture of an I-94

http://www.visajourney.com/gallery/display...bum=5&pos=0

Note how one is admitted pursuant to Class K1. Meaning you must follow the admission rules pursuant to a K1. A similar notation say B2 (tourist) or H1B (working visa) is placed in other admission cases for example. One is clearly out of status for say studying or working on a B2. So one should correspondingly be out of status for being in K1 status (one coming to marry in the US) and be married at the time (you got married).

And to address your point, if you are hauled into ICE custody for unauthorized work while being here lawfully on a B2 you may be deported despite having an otherwise valid defense.

Back when we did AOS, you could potentially avoid being out of status by having a city hall / court house marriage in the morning and doing a walk-in appointment at your local USCIS office here you would file your AOS and instantly get a NOA1 receipt later in the afternoon. Although the official one still came in the mail a few weeks later. But even then for those few hours you are still out of status.

This might be a good question to post in the general K1 board to see what kind of response we'd get from some more knowledgeable members, albeit covered with a bunch of foolish guesses as well.

But if you are seeking an answer in the Code of Federal Regulation, you will probably find some cute line that says one is deportable if he is out of status. The details such as the I-94 would be in a procedure manual. memos, cables, and other operating instructions, but might be found in the regulations as well. As for getting right to the issue, I doubt you will find anything about status and marriage post K1. You just have to make an inference based on other things you know.

A friend of mine is married to his wife of 40+ years, and they recently ran into immigration problems. She had trouble proving that she was here legally. Back then, this was all done at the border upon entry, based upon the marriage and that was it.

Your friend can simply adjust status under registry. Read up on it in the I-485 instructions. Basically if you can prove you have been in the US since January 1, 1972 you get a green card no questions asked barring any other grounds of inadmissibility say medical, criminal, etc. But being out of status and entering without inspection are excluded. So she can do that if all else fails, but that would put her back to regular green card status. Does she have a US passport? Have her apply for one, that is an easy way to test if you are a US citizen. If she does, that should fly for proving status. Edited July 12, 2007 by Satellite

[slim 1,514]

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.

Excellent disclaimer!

This topic has gotten way too deep now. For the OP, and everyone else that's really confused:

Your fiance(e) is going to enter the U.S. within 6 months of being issued the K-1 visa

At their POE, they're going to get an I-94 stamped with an expiration date of 90 days later

You must marry within that 90 days

Now, once married (and/or the I-94 has expired) there's a completely foggy area as to the "legal status" of your spouse. Not even the govt. (other than USCIS agencies) knows what they're supposed to use to show proof of being in the U.S. legally. We were told at the USCIS office (by an "officer") that the spouse is to use their foreign passport (for proof of ID) and a notarized marriage certificate (for proof of marriage to a USC) to "legally" remain in the U.S. They added "the only document that will be recognized for immigration purposes from this point on is the NOA I from the AOS" and until that was received, there's really no status, only that the case is "pending".

So, the next step after marriage is to file for AOS by submitting an I-485 and related material. Until that happens, your spouse will be stuck in that foggy area.

[apgk 0]

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.

Excellent disclaimer!

This topic has gotten way too deep now. For the OP, and everyone else that's really confused:

Your fiance(e) is going to enter the U.S. within 6 months of being issued the K-1 visa

At their POE, they're going to get an I-94 stamped with an expiration date of 90 days later

You must marry within that 90 days

Now, once married (and/or the I-94 has expired) there's a completely foggy area as to the "legal status" of your spouse. Not even the govt. (other than USCIS agencies) knows what they're supposed to use to show proof of being in the U.S. legally. We were told at the USCIS office (by an "officer") that the spouse is to use their foreign passport (for proof of ID) and a notarized marriage certificate (for proof of marriage to a USC) to "legally" remain in the U.S. They added "the only document that will be recognized for immigration purposes from this point on is the NOA I from the AOS" and until that was received, there's really no status, only that the case is "pending".

So, the next step after marriage is to file for AOS by submitting an I-485 and related material. Until that happens, your spouse will be stuck in that foggy area.

thanks all - I take all the responsibility (and credit ) for generating such a stimulating discussion. Its been fun to read.