Legal status while waiting AOS

[kaboom 2]

Hi

Finally I got the idea to get state ID to stop carrying my passport with me all the time (for drinks or buying cigarettes).

AOS package was filed in Dec'10, adjusting status from K-1 visa.

And what I found on DMV web site was that besides SSN I also need to provide them with the evidence of legal presence in US.

In California, they say, the following might be used as legal presence evidence:

* Permanent Resident Card - dont have it

* Temporary Resident Identification Card - what is that?!

* Valid foreign passport with a valid Record of Arrival/Departure (form I-94) - I have passport but is I-94 valid after the date of the stamp? Mine says Jan 02 2011

* "Processed for I-551" stamped in a valid foreign passport - nope

* Employment Authorization Card - dont have it yet

* Notice of Action (I-797 Approved Petition) – must indicate approved extension of stay or change in status that grants temporary or permanent residency, or indicates that an original, duplicate or renewal Resident Alien card is forthcoming. - hmmm, does anybody know about this NOA? When they send it? After the Interview?

As all I have in the moment is my passport with I-94, NOA1 for AOS and NOA for Biometrics appointment.

Hm, do you think it is worth trying to get inside DMV with that and try to apply state id/driving licence?

[Harpa Timsah 13,258]

Your status is "AOS pending." It is a legal presence, but it's sort of a limbo status. Best to wait until you have GC or EAD before trying for the DL. You can try to explain it but the DMV people have no idea about immigration and it will probably be impossible to get anything done until you have the required docs from their list. Good luck.

[VanessaTony 3,567]

You are "out of status". AOS pending is what people call it once you've filed AOS but it's not a legal term. You can't be deported, you have nothing to worry about there BUT you can still be detained and locked up in detention by ICE because you are out-of-status. When you go before the Immigration Judge they will basically dismiss the case because you've filed for AOS and are "safe" until a decision is made.. you're in limbo, like Harpa said.

Unfortunately because you are out-of-status it's most likely that once your I-94 expires you will be unable to get a drivers licence or state ID until you get your EAD or GC (or GC stamp). You are correct that because your I-94 expires they won't accept that for legal presence because your legal presence is over (but you're still legal 'cause you're AOS pending.. it's very confusing sometimes :S).

[kaboom 2]

amaaaaazing,

that's kind of interesting

thanks a lot for your replies

Harpa Timsah, Vanessa&Tony - when did you get your driving licenses: before AOS or after?

[VanessaTony 3,567]

amaaaaazing,

that's kind of interesting

thanks a lot for your replies

Harpa Timsah, Vanessa&Tony - when did you get your driving licenses: before AOS or after?

After. I'm in Iowa.

Some states will issue the drivers licence while the I-94 is valid and some won't. Some will and make it valid till the I-94 expires, some make it valid a year. It's annoying that there's no central rule. Getting it with an EAD should be simple but it most likely will be valid for a year. Then once you get your GC you go back and get it extended.

[Harpa Timsah 13,258]

I got my license when I was 15 years old My husband, the immigrant, still hasn't gotten one because we don't have a car. I wouldn't have even tried before he got his GC because I knew the local DMV wouldn't issue it. Some people have finagled it, but I wouldn't want that headache. You should be able to drive on your foreign DL for a given time once you move here. (I have seen in one state that you can drive for a year on your foreign DL after becoming a state resident, for instance). Check the laws for your state. Good luck.

[kaboom 2]

Ohhhh, I see...

In CA it is legal to drive with national DL but in 10 days after becoming a resident (in my case I understand it like in 10 days after my GC is issued) DL should be changed to State one.

So there is nothing to do then - just chill out till the EAD or GC to arrive

thnx a lot for information shared!

[tom&tanya 48]

Please refer to this correct answer given last year by a member who knew what they were talking about. All you need to do is show your NOA1 from your adjustment of status filing to anyone who might question you. You cannot be locked up by ICE or anyone else for being out of status ... because you are not out of status.

HeatDeath, on Jan 8 2010, 03:56 PM, said:

Short answer: yes.

Long answer: There are several expiry dates encountered in the K-1 visa process.

The first is the expiry date of your I-129F approval. After your initial petition is approved, you have until your I-797 expiration date to apply for and receive your K-1 visa. This expiration date usually doesn't matter. Most consulates will automatically extend this date if it happens to pass while you are in the process of applying for your visa.

The second is the expiry date written on your K-1 visa itself. This date has nothing to do with when you have to get married, how long you can stay in the US, or when you have to adjust status. This date is 6 months from the issuing date of the K-1 visa, and specifies the date you have to enter the US by. Once you have used your K-1 visa to enter the US, this date is completely irrelevant. So yes, if you entered the US prior to the expiration of your K-1 visa, and married within 90 days, you can still adjust status.

The third expiry date is on the I-94 you are issued when you enter the US. With a K-1 visa, this date is 90 days after you enter the US. The conditions of a K-1 visa state that you have to marry the US citizen named on the K-1 visa within that 90 day period, or you (like every other alien who enters the US on a visa of any kind) have to leave by the expiry date of your I-94. If you have married the US citizen named on the K-1 visa, you do not have to leave at the end of that 90 day period. Note that the expiry date on the I-94 is not the date you have to file AOS by (though it is highly recommended, for a variety of reasons) let alone the date you have to have your green card by (utter impossibility, but I've seen people here with that misconception). It is ONLY the date you have to be married by. If you have not married, you must leave the US at or before this date. If you HAVE married, you can stay beyond the expiry of your I-94, and adjust status.

Note: if you do not file AOS before the end of your 90 day I-94, you will begin accumulating out of status days. You will continue accumulating them until you file for adjustment of status. While out of status days are virtually always forgiven when your adjustment of status is approved, accumulating more than 180 out of status days will cause you to incur a multi-year ban on reentering the US. Accumulating more than a year of out of status days gets you a ten year ban. [Obviously, if you have anything like this many out of status days, you should NOT leave the US FOR ANY REASON WHATSOEVER until your AOS is approved and you have paper documentation that your out of status days are forgiven.] Furthermore, if you happen to interact with federal law enforcement while out of status, they have the right to make your life far more complicated than you would generally like. So try to keep out of status days to a minimum.

Once you file for AOS, you stop accumulating out of status days, and can remain in the US until your AOS case (and any necessary appeals, G-d forbid!) is decided, one way or the other.

Hope this helps.

[Brother Hesekiel 2,235]

Well peoples . . . I have to agree.

"Status pending" is not out of status.

Once the AOS petition has been accepted and the NOA1 been issued, the applicant / beneficiary is legally present in the US pending the adjudication of his or her AOS application. There will be no detainment and no waterboarding of any sort.

Regarding the DL, yep, that's correct, not a chance in California anymore without the Green Card, the I-551 stamp, the EAD, or an I-94 that is valid at least 6 months which automatically excludes B2 and K-1 patients. The "immigrant" becomes a lawful permanent resident when the AOS petition has been decided positively. Then he or she has 10 days to apply for a State driver license. Until then, driving with the driving license of the home country is perfectly legit. How long it's legit varies from State to State and there's no merit in discussing this here.

[VanessaTony 3,567]

Please refer to this correct answer given last year by a member who knew what they were talking about. All you need to do is show your NOA1 from your adjustment of status filing to anyone who might question you. You cannot be locked up by ICE or anyone else for being out of status ... because you are not out of status.

You make me laugh because I DO know what I'm talking about, ask the member that you quoted, that our opinions and advice vary occasionally is irrelevant.

It is common knowledge that you can still be detained by ICE even with AOS pending, I'm not saying you SHOULD be but you CAN be. There have been more than one of these cases mentioned on VJ, given not all people with AOS pending are on VJ, you can extrapolate that number to a much greater one.

One case I remember distinctly involved $15,000 bail and lawyer fees. The immigrant and his wife were on a bus interstate when it was stopped by ICE and they were (from memory) actually looking for someone in particular. He SHOWED his NOA1 (and passport) but the officer refused to accept it because he didn't know anything about it and the immigrant was detained in immigration jail.

The wife paid the $15,000 bail to get him out before his court hearing. When the immigrant eventually went before an immigration judge, the judge threw the case out because the immigrant is allowed to remain while awaiting a decision on the AOS.

I'm not saying that the officer was right, the issue is that like everything, not everyone KNOWS everything.

As for status, there have been many many posts from more experienced members than myself (and Heat) about how "AOS pending" is not a legal status, it's not a legal term. You are "protected" but you aren't anything. Your status IS out-of-status because there is no legal term for "AOS pending, but you're protected from deportation. If you want to try and locate some legal document stating that your legal status is AOS pending I will HAPPILY eat my words. You CAN still be detained. You're not supposed to be, but you MIGHT which is why it's recommended (again in MANY posts) that you avoid borders etc until you have your GC.

[VanessaTony 3,567]

Well peoples . . . I have to agree.

"Status pending" is not out of status.

Once the AOS petition has been accepted and the NOA1 been issued, the applicant / beneficiary is legally present in the US pending the adjudication of his or her AOS application. There will be no detainment and no waterboarding of any sort.

Sorry bob but I respectfully disagree. I will continue my search for the document that states this (though I remember there's a post by an "old" member who's not known for being nice discussing it, and another from a knowledgeable member quoting INA rules/legislation).

As for detained, again, I've seen people posting on here who have been though they showed the NOA1 so while I don't think you SHOULD be, apparently you still CAN be by ICE officers that don't know what we know (or do but you tick them off).

Edited January 7, 2011 by Vanessa&Tony

[VanessaTony 3,567]

You are in a "period of authorised stay" or something like that, so while your legal status is out-of-status you are actually "out-of-status with a period of authorised stay".. if anyone asks.. or AOS pending if you want to write it on USCIS docs, because they know what you mean.

Your "authorised stay" is terminated when your AOS is denied and you are given 30 days to leave.

I tried to read this: http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-3422.html#0-0-0-208 to determine if this is where i will find my answer but there's too many "as in this section" and "this section" stuff and I can't be bothered. Anyone else is welcome.

[JimVaPhuong 4,863]

Sorry bob but I respectfully disagree. I will continue my search for the document that states this (though I remember there's a post by an "old" member who's not known for being nice discussing it, and another from a knowledgeable member quoting INA rules/legislation).

As for detained, again, I've seen people posting on here who have been though they showed the NOA1 so while I don't think you SHOULD be, apparently you still CAN be by ICE officers that don't know what we know (or do but you tick them off).

You are correct.

USCIS considers a person with a pending adjustment of status application to be in a period of authorized stay as granted by the Attorney General. This was stated in a policy memorandum by USCIS on June 17, 1997:

http://www.americanlaw.com/unlawfulmemo1.html

"Aliens with properly filed applications for adjustment of status under both sections 245(a) and 245(i) of the Act will be considered aliens present in the United States under a period of stay authorized by the Attorney General."

There is no similar statement anywhere in either the INA or CFR, which explains why you have difficulty finding it in the law. The purpose of the memorandum was to clarify what constitutes "unlawful presence" as opposed to "out of status". Under the definition provided by the memorandum, an alien with an AOS application pending may be "out of status" if their non-immigrant status has expired, but they are not accumulating "unlawful presence" because their stay is currently authorized by the Attorney General.

I don't think of it so much as limbo. It's more of a grace period.

Danielle Rizzo has written a good article about this topic on the AILA site:

http://www.ilw.com/articles/2009,0120-rizzo.shtm

[Justine+David 218]

What about the 90 day period after K1? Isn't that protected status?

[HeatDeath 430]

During the validity of your K-1 I-94, you are unambiguously in the US on a legal status, as evidenced by the I-94 in your passport.

And yes, VanessaAndTony knows what they are talking about, possibly more frequently than I do.

Edited January 7, 2011 by HeatDeath