AOS before or after I-94 expires

[beatlesrebel 0]

The K1 recipient's passport, I-94, and marriage certificate is the only documentation necessary to stay in the country.

So, if for some reason we don't file for AOS right away, do we need to send copies of these 3 things somewhere to prove we've gotten married? Or do you just wait to send that documentation in with your AOS? I'm confused...

[Nik+Heather 122]

The question was raised in this thread so perhaps it's good to discuss it here.

This question is raised EVERY DAY in so many threads. Why not dedicate one to the discussion? If it's right, why not more widely advertise it, to correct the "common knowledge" error?? I mean, how many people read this thread looking for that info, but how many more would read one on the main AOS board? It seems pretty important. Maybe we can get it pinned, and if you're all REALLY concerned about correcting this, it could be pinned for time immemorial for future AOSers to read.

Edited February 23, 2010 by Nik+Heather

[Nik+Heather 122]

No, it's not off-topic and I think people here are intelligent enough to read a couple conversations at a time. It's sort of an internet/homosapein thing. Also, you are not the internet robocop of me. Expect lolcat posts in 3...2...1...

I see, so it's not REALLY about making sure the right info is out there, it's about targeted bullying in a back corner of the forum. Well, I'll post a new topic and we'll see. Actually, it seems like a good thing to discuss on an immigration forum.

[SunDrop 59]

Typed a response that was conclusive, but actually think that even with all the bitter sarcasm there is some educational merit to having this as its own thread.

I'll email a mod and ask if it can be moved, if only to clean up the AOS thread again..

Sorry folks!

[Kathryn41 3,205]

This topic has been split from the 2010 UK AOS thread to make its own thread. I will ask that you stop the mocking, bullying and insulting types of comments that have been made in this thread and discuss this topic with courtesy and respect.

Moderator's hat off (comments made personally and not as a moderator):

The I-94 is an important document. It is the document that is used to determine the legal status of an arriving or visiting non-immigrant in the US. The K-1 visa is a non-immigrant visa good for a one time entry to the US. Once the individual has entered the US, they receive the I-94. The I-94 designates the length of time of their legal stay in the US. Visitors also receive I-94s or I-94Ws. Even though a visitor from a certain country may be allowed to stay up to 6 months, the I-94 states how long they are actually allowed to stay in the US. If they 'overstay' the I-94 they are out of status and now illegally present in the US. This is different than someone making an illegal entry but their presence is just as illegal. They have no legal status - that is what 'out of status' means.

K-1 visa entrants need to remember that their 'immigration' is a 2 phase process - permission to enter the US, and permission to remain in the US. The K-1 is their permission to enter the US. The AOS is their permission to remain in the US.

One of the conditions that they agreed to when they applied for and accepted the K-1 was that they would get married within 90 days or leave the US. The I-94 designates when those 90 days are up. Their legal status granted by the I-94 always expires at the end of those 90 days. To remain legally in the US beyond the date designated by the I-94, K-1s need to complete part 2 of the Immigration process - applying to Adjust their status from a non-immigrant to an immigrant. They are allowed to do this based upon satisfying the requirement of their K-1 entry - marrying their sponsor within 90 days. Once they apply to adjust status and the application is accepted, their legal status in the US changes to become 'AOS applicant pending decision'. If they do not marry their sponsor within the time period designated by the I-94 they are not allowed to adjust status based upon the K-1 entry. If they end up getting married after the 90 days, their sponsor needs to request 'permission' to allow them to become an immigrant all over again by filing an I-130 Petition for a family member.

Anyone can choose not to complete the process if they wish. There are, however, consequences to such choices. The consequence of failing to file for AOS after entry on a K visa means that your status expires and - just like the visitor who fails to leave at the end of the date desiginated by their I-94 - they are illegally present in the US and can be deported. Entering the US on a K-1 visa and getting married does not provide you with any extra protection when you fall out of status. You are just as much out of status as if you were a visitor. You may be allowed, however, if 'caught' to apply immediately for AOS and thus stay any deportation orders.

There are also consequences of being out of status. If you are out of status for 180 days before you decide to apply for permission to remain in the US as an Immigrant (eg. adjust status) and leave the country before you become a permanent resident, you will be denied re-entry to the US and incur an automatic 3 year bar to re-entry - a penalty for being out of status. If you are out of status for a year before you decide to apply to adjust status and leave the country before becoming a permanent resident, then that penalty is 10 years. The start date for those accumulating out-of- status days is the date the I-94 expires.

Those of us who chose to use the K-1 to enter the US do so because we want to live in the US with our American husband or wives. If we do not intend to complete the full immigration process then we are doing ourselves and our partners a grave disservice - forcing each to live 'outside' of the legal protections granted by legal residency, facing the daily fear of 'consequences' by failing to complete all of the required steps for legal residency in the US, and adding unnecessary stress to an already stressful situation. All this is so easily prevented by filing to adjust status from non-immigrant to immigrant, ideally before the status granted by the I-94 expires.

The I-94 is an important document. It's expiry date is significant. Failing to complete the process in a timely manner does have consequences. You may or may not end up suffering the effects of those consequences, but I, for one, would never want unnecessarily to subject myself or someone I loved even to the possibility of those consequences, let alone the actuality.

Edited February 24, 2010 by Kathryn41

[Rebecca Jo 1,962]

- You do NOT have to file AOS before your I-94 expires. The expiration on your I-94 is the date that you are required to be married by. It has zero to do with AOS. You could file AOS 20 years after the I-94 expires if you wanted to, and not a single USCIS person is going to use the word "I-94" in the ensuing discussion, unless it's something like "so did you have any problems with the traffic on I-94?"

That's an interesting statement.

Because an alien can't even file to adjust without sending in a copy of their last I-94.

[Rebecca Jo 1,962]

For those of you who think filing before the expiry of the I94 is unimportant, I would direct you to this PDF from the former INS.

Some pertinent excerpts are clipped below the link.

It's not hard to find dozens of others.

http://www.ansarilawfirm.com/docs/Interpre...ney-General.pdf

"Some practitioners have argued that the above scenario creates, in effect, a “bridge” of continuing status stemming from the initially timely filed COS application such that an alien can eternally avoid becoming unlawfully present as long as they have a pending EOS or COS application with the Service. The essence of their argument relies on their misinterpretation of “period of stay authorized by the Attorney General” as equivalent to status. They argue that if the alien is in “status” because they have been granted “a period of stay authorized by the Attorney General,” then that alien should be able to extend his or her stay or change status. A review of the relevant statutes and regulations indicates that the “bridge” of continuing status analysis is an incorrect and improper interpretation of the relevant statutes, regulations and INS memos on unlawful presence (see Memorandum for Regional Directors from Johnny N. Williams, Executive Associate Commissioner (Office of Field Operations) (“6/12/02 Williams memo”); Memorandum for Regional Directors from Michael A. Pearson, Executive Assistant Commissioner (Office of Field Operations) (“3/3/00 Pearson memo”)).

The relevant regulations distinguish between the period of time in which an alien is considered to be in “status” and the period of time during which he or she is deemed to be in a “period of stay authorized by the Attorney General”.

8 C.F.R. 214.2©(4) provides that an extension of stay may be approved for an applicant who maintained his or her status before the application was filed. Similarly, 8 C.F.R. 248.1(b) provides that a change of nonimmigrant classification may be approved for an alien who maintained his or her status before the application was filed. In order to determine if an alien has maintained his or her status, the Service looks to see if the authorized period of admission has been overstayed. The relevant inquiry as to “status” requires the Service to determine if the alien was still within a period of authorized admission at the time of filing the application.

For purposes of section 212(a)(9)(B)(ii) of the Immigration and Nationality Act an alien is “unlawfully present” in the United States after the expiration of the period of stay authorized by the Attorney General. The period of stay authorized by the Attorney General normally expires upon the expiration of the alien’s Form I-94 (arrival/departure record).4

For the reasons stated in previous INS guidance and restated here, the Service will deem the alien to be within a period of stay authorized by the Attorney General (and not unlawfully present), if the alien has a filed a non-frivolous EOS or COS application with the Service Center and that application is still pending, provided that such application was timely filed, i.e., prior to the expiration of the Form I-94. See 3/3/00 Pearson memo.

In these circumstances, the alien benefits from a continuation of the period of stay authorized by the Attorney General, but not from a continuation of “status.” I.e., the alien was in a period of authorized stay when he or she was within the initial period of his or her admission and the period of authorized stay continues after the filing of a timely EOS or COS application. There is simply no analogous rule or guidance providing for a continuation of the alien’s “status.” Therefore, the alien will be in status only as long as he or she remains within the initial period of his or her admission. Of course, if the alien’s EOS or COS application is granted, the alien will again be in “status.”

In the above case scenario, the alien’s initial period of admission (as per her I-94 “Arrival/Departure Record”) expired prior to 9/10/01. She was no longer in status once her I-94 expired, but was considered to be in a period of stay authorized by the Attorney General because of her pending, timely filed COS application. The second application for an extension of stay of the alien’s B-2 nonimmigrant status was filed after the original B-2 status expired. Accordingly, it did not meet the requirements of 8 C.F.R. 214.1© as it was not timely filed. The alien became unlawfully present upon the denial of her original, timely filed COS application (12/07/01). The fact that the alien was also the beneficiary of an untimely filed EOS application (09/10/01) that was pending with the Service Center at the time it issued its denial of the COS application did not confer continuing “status” on the alien. As the alien was not within her initial period of admission when the B-2 EOS application was filed, she cannot invoke the policy outlined in the Pearson memo for purposes of avoiding unlawful presence.

Edited February 24, 2010 by JohnnyQuest

[Rebecca Jo 1,962]

And to answer the question in the first post of this thread:

Yes, your alien spouse who is present in the US on an expired I94 and not under color of law by virtue of a pending application before the Service CAN be removed from the country.

[VisaJourneyLady 33]

For those of you who think filing before the expiry of the I94 is unimportant, I would direct you to this PDF from the former INS.

ummmm, so wait, quoting rules from organisations that are no more is valid in court? Can the British still tax me for having too many windows?

[Rebecca Jo 1,962]

ummmm, so wait, quoting rules from organisations that are no more is valid in court? Can the British still tax me for having too many windows?

INS is legacy to USCIS.

It's the interpretations of the CFR which are relevant.

And I'm unsure about your windows.

[VisaJourneyLady 33]

INS is legacy to USCIS.

In response to that daft statement (defunct organisations literature is defunct - how can they update their literature to reflect changes in law and precedent if they are no longer producing literature?), I say; Wot Mox Said:

8 C.F.R. 214.2©(4) no longer exists in the CFR, since the memorandum dates from 2003 and the CFRs (all 50 of them) get overhauled annually.

[Rebecca Jo 1,962]

The examples in the linked reports all had to do with people seeking to adjust from non-immigrant visas that were not family-based adjustments. I think we all can agree that overstay is forgiven in the case of those adjusting under those auspices (whether K1, K3, VWP, B2, L1, J1, whatever). Moreover, s.248.1(a) specifically does NOT apply to those adjusting as a spouse (or derivative K2s), and 8 C.F.R. 214.2©(4) no longer exists in the CFR, since the memorandum dates from 2003 and the CFRs (all 50 of them) get overhauled annually.

If you could show that family-based visas are subject to this same criteria, you might have a case.

You know, just because they re-arrange the law doesn't mean they make it go away.

Go to 8 CFR 245.

http://www.uscis.gov/portal/site/uscis/men...CRD&CH=8cfr

(a) The status of an alien who was inspected and admitted or paroled into the United States 1/ or the status of any other alien having an approved petition for classification as a VAWA self-petitioner 1aa/ may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if

(1) the alien makes an application for such adjustment,

(2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and

(3) an immigrant visa is immediately available to him at the time his application is filed.

(b) Upon the approval of an application for adjustment made under subsection (a), the Attorney General shall record the alien's lawful admission for permanent residence as of the date the order of the Attorney General approving the application for the adjustment of status is made, and the Secretary of State shall reduce by one the number of the preference visas authorized to be issued under sections 202 and 203 within the class to which the alien is chargeable for the fiscal year then current.

© 1/ Other than an alien having an approved petition for classification as a VAWA self-petitioner, 1aa/ subsection (a) shall not be applicable to (1) an alien crewman; (2) 1/ subject to subsection (k), an alien (other than an immediate relative as defined in section 201(b) or a special immigrant described in section 101(a)(27)(H) , (I) , (J) , or (K) ) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States; (3) any alien admitted in transit without visa under section 212(d)(4)© ; (4) an alien (other than an immediate relative as defined in section 201(b) ) who was admitted as a nonimmigrant visitor without a visa under section 212(l) or section 217 ; (5) an alien who was admitted as a nonimmigrant described in section 101(a)(15)(S) ; (6) an alien who is deportable under section 237(a)(4)(B) ; 1a/ (7) 2/ any alien who seeks adjustment of status to that of an immigrant under section 203(b) and is not in a lawful nonimmigrant status; or (8) any alien who was employed while the alien was an unauthorized alien, as defined in section 274A(h)(3) , or who has otherwise violated the terms of a nonimmigrant visa.

[sachinky 465]

"Anyone can choose not to complete the process if they wish. There are, however, consequences to such choices. The consequence of failing to file for AOS after entry on a K visa means that your status expires and - just like the visitor who fails to leave at the end of the date desiginated by their I-94 - they are illegally present in the US and can be deported. Entering the US on a K-1 visa and getting married does not provide you with any extra protection when you fall out of status. You are just as much out of status as if you were a visitor."

+10,000 useless immigration points to Kathryn!

[Rebecca Jo 1,962]

Katherine is wrong. I know she's a moderator, which gives her extra cred in some eyes, but in this case she's simply wrong. Quoting wrong information doesn't make it right, it just means that wrong information is going to come up more often in forum searches.

I'm very sorry to inform you that she is not wrong.

Edited February 24, 2010 by JohnnyQuest

[Rebecca Jo 1,962]

What exactly is the silver bullet you're referring to in this paragraph?

What is it you are looking for? A cite that says "K1 entrants must adjust their status before the expiry of their I94 or they will be denied adjustment of status"?