applying for AOS - by when?

[apgk 0]

Fiancee had entered US on Nov 10th

We got married on Dec 14th

The I-94 has the 90 day period till Feb 8th

Wanted to find out if the papers for AOS (and EAD, AP) have to be filed prior to this 90 day period also?

We have not yet started working on it (want to take a break with all the paperwork) and it seems like it might a while to prepare all the papers - is there any mandated timeperiod within which all this AOS paperwork has to be filed?

[Satellite 1]

Since you have satisfied the requirements of the K1 visa and if you two remain married, in theory you could file the AOS whenever you want. There is no time limit that will effect your AOS application because AOS through marriage to a US citizen forgives all unauthorized work and overstay which you may encounter beyond the expiration of her 90 day status.

[apgk 0]

Since you have satisfied the requirements of the K1 visa and if you two remain married, in theory you could file the AOS whenever you want. There is no time limit that will effect your AOS application because AOS through marriage to a US citizen forgives all unauthorized work and overstay which you may encounter beyond the expiration of her 90 day status.

ok thanks Satellite. The EAD (I-131) instructions say that it has to be filed with in 90 days from the date of entry - so I got confused with this.

[1HappyGuy 45]

Although you have some time before filing for AOS, don't wait too long. Remember, she will not be allowed to leave and return until she has a green card or you have gotten advance parole. Also, since the USCIS has been raising fees so often, filing sooner might be better.

[Chris Parker 11]

Wanted to find out if the papers for AOS (and EAD, AP) have to be filed prior to this 90 day period also?

is there any mandated timeperiod within which all this AOS paperwork has to be filed?

You are not required to file the papers ever actually...

However, if the I-485 has not been filed by the expiration date of the I-94, unlawful presence will begin to accrue and she is technically deportable (of course if they tried that, she'd just file I-485 and that would be the end to that).

Unlawful presence of 6 months or more will make getting an Advance Parole travel document inadviseable. So you be best to be sure the I-485 is filed no later than August according to the dates you gave.

No unlawful presence would be ideal of course, and certainly that has been doable in your situation. USCIS could be more suspicious about the health of the relationship immediately after the marriage at the interview if they notice a lot of delay in filing which should have been unnecessary.

[Satellite 1]

USCIS could be more suspicious about the health of the relationship immediately after the marriage at the interview if they notice a lot of delay in filing which should have been unnecessary.

You can always counter this argument by saying the cost of AOS is prohibitively expensive. Imagine if you qualify as a sponsor $18k for two. Giving up $1010 for an immigration benefit is a good chunk of your annual income, thus you had to save for a couple of years There is no waiver of fees as far as I am aware.

[Chris Parker 11]

USCIS could be more suspicious about the health of the relationship immediately after the marriage at the interview if they notice a lot of delay in filing which should have been unnecessary.

You can always counter this argument by saying the cost of AOS is prohibitively expensive. Imagine if you qualify as a sponsor $18k for two. Giving up $1010 for an immigration benefit is a good chunk of your annual income, thus you had to save for a couple of years There is no waiver of fees as far as I am aware.

Of course, that argument gets you into big trouble real fast when they look at your tax returns, employment history, and places of residence also submitted with the I-485 application and updated to the date of the interview and see that is not your situation at all!

They probably wouldn't ask directly why you filed so late after getting married... They would probably just scrutinize your case much more intensely because of their own suspicions... Remember, the granting this immigration benefit is a discretionary decision!

Edited January 17, 2008 by Chris Parker

[slim 1,514]

Discretionary, smizscretionary. If you're married and apply for AOS, sure, they may deny it for lack of evidence or something like that. However, it's not like they're going to deport your SO simply because you waited too long to file.

People seem to think the quicker you file the AOS the better. I don't think it would hurt, but if you need more time, like Sat said, financial reasons being a great reason to drag your feet a little bit, then no big deal. I wouldn't wait forever as your SO will be in some kind of a "limbo" status (and you'll be footing the bill for everything since they can't "legally" work) but waiting a few months or so isn't going to make or break your case.

We waited for the tax return to come back before filing. That put us at about two months or so PAST the 90 day mark. Whoopdity freakin doo.

When we went to the interview, my dumb@$$ said the wrong date for our wedding. That could've ruined our case too but I believe the interviewer looked at it like any other woman, "Dumb guy can't even remember his own anniversary date. Yep, they're married!"

[Chris Parker 11]

When we went to the interview, my dumb@$$ said the wrong date for our wedding. That could've ruined our case too but I believe the interviewer looked at it like any other woman, "Dumb guy can't even remember his own anniversary date. Yep, they're married!"

I suppose that depends if you thought you had been married longer than you actually were or shorter.

The decision is discretionary, meaning there are no appeals possible (other than re-applying if still eligible) and the case can be denied without an RFE if any document is missing. In cases where the officers do not believe you, they can hold up deciding the case indefinitely until they have evidence to support or negate their suspicion. So, the more you can do to show you kept everything in order, the better.

2 months over the 90 days with only a moderate income level, particularly if you were just married near the end of the 90 days, seems reasonable in my discretion (but I wouldn't ignore it easily for a millionaire). 2 years over the 90 days when living just above the poverty level and with little educational background I might excuse in discretion as well. So you see, it really depends on the officer's opinion given the facts presented, but my advice is to consider it an important responsibility that should be done ASAP after marriage.

Edited January 18, 2008 by Chris Parker

[slim 1,514]

I think it's also important to remember that USCIS and visas and interviews and all the other stuff that's VJ related isn't the same as what you see on TV "in a court of law."

There seems to be this presumption that you have to "prove beyond a shadow of a doubt" that your case is real and there's no funny business going on and you're not trying to defraud the system or skirt around any rules or anything like that. Or else your case will get denied.

I realize there's increased scrutiny on all things immigration-related right now, but when you're petitioning for a relative or loved one to come to or stay in the U.S., it's not so much that you're asking their permission as much as you're saying "Hey, look Uncle. This is what I'm going to do. You want some papers, fine, I'll do some papers." But, remember, you have rights as a USC to petition for folks and sure, they have the right to deny your request on any number of grounds but there are laws, rules and regulations that they must follow.

In the case of immigration I think a large number of us on VJ (I know I sure used to) look at the immigration system as a "pass/fail" type of situation where the burden of proof is on us to prove that we're "for real" in our relationships. That's simply not the case. They must prove "why" they choose to deny a case, not the other way around.

That said, I believe you should have more than enough "proof" for your case simply because you are involved in a real relationship and you follow the guides and suggestions and advice of those here on VJ who have been through the process before. But to be scared they're going to deny your case because you can't prove something? Come on.

USCIS and all the other VJ related govt. services have certain things they require in order for your case to be approved. If you do those things, you'll be fine. You don't have to prove your case. They do.

[Chris Parker 11]

In the case of immigration I think a large number of us on VJ (I know I sure used to) look at the immigration system as a "pass/fail" type of situation where the burden of proof is on us to prove that we're "for real" in our relationships. That's simply not the case. They must prove "why" they choose to deny a case, not the other way around.

That said, I believe you should have more than enough "proof" for your case simply because you are involved in a real relationship and you follow the guides and suggestions and advice of those here on VJ who have been through the process before. But to be scared they're going to deny your case because you can't prove something? Come on.

USCIS and all the other VJ related govt. services have certain things they require in order for your case to be approved. If you do those things, you'll be fine. You don't have to prove your case. They do.

Actually, you're right, immigration is not a court of law, but I think you've got the rest of the concept backwards ...

The burden of proof is on the applicant to prove eligibility for the benefit requested to the satisfaction of the adjudicating officer, otherwise the benefit shall be denied.

That is also part of what we mean by a "discretionary" decision.

[slim 1,514]

This is where I now see a difference in the VJ process. I don't want to say I was "scared" of the immigration process, but being unfamiliar with it and hearing all the "horror stories" of people being rejected and denied it seemed like we were fighting an uphill battle when in reality it was really just filling out some papers and waiting a little while.

Truth be told, I don't think there's a "burden of proof" anywhere. Sure, they want to see some "proof" that you're not trying to scam the system but it's not like you're setting up a legal defense or anything. It's more of you just jumping through the hoops that you're required by law or regulation to jump through. And VJ provides a pretty detailed description of how to do that legally and in the best way possible.

The intention of my "don't sweat the proof" posts recently is not really to downplay the seriousness of the VJ process but to help everyone keep in mind that this is not a matter of proving something to the govt. It's a matter of petitioning them for rights that you're (and your beneficiary) are entitled to as outlined in the applicable laws and regulations.

Basically, follow the rules and you've got nothing to worry about. Don't be "scared" that you're not going to get your S/O here, just do what you're supposed to do and it will all work out allright. Sure there are "horror stories" of those involved in the VJ process, but for the most part, from what I've seen and heard here on VJ (and through real immigrants here) as long as you're doing what you're supposed to be doing and filling out the right papers, filing the right forms, complying with the established regulations, then you've got nothing to worry about.

You may have to wait.... but that's just a part of it. Let's take some of the "stigma" off the VJ process. I'm sure if I would've been greeted with a "dude, it's almost a guarantee" as opposed to a "you can't do anything wrong or forget anything or else she'll never be able to come here" then I wouldn't have worried as much. Now that I've been through it, I don't want to say USCIS is my b!tch, but I'm pretty confident I can figure out how to get through the process, and in large part to my friends here at VJ. As a newbie though, there needs to be some confidence. Not weariness.

So go! File some forms already and have confidence that your case is going to get approved!!!

[Chris Parker 11]

It's a matter of petitioning them for rights that you're (and your beneficiary) are entitled to as outlined in the applicable laws and regulations.

You still missing the point---the K-1 visa and adjustment of status are not entitlements! They are discretionary decisions. They do get denied occassionally to eligible persons.

The papers you are submitting are standard proof of eligibility required in all cases. However, since the decision is discretionary, they are not necessarily all that you will need to prove your case warrants a favorable exercise of discretion. No one has a right to receive them, however.

On the other hand, the I-129F, I-130, I-751, and N-400 petitions (and immigrant visas, actually) are entitlements and the officers do not have discretionary authority. You still have to prove eligibilty for the benefit, however the list of documents needed to do so is fixed. In these cases, the officers cannot deny these benefits without citing a ground of inadmissability or ineligibility, and you still will have a right of rebuttal and appeal in those cases. Only these types of benefits are available as a matter of right.

Don't confuse the discretionary benefits with the entitlement benefits. You are not entitled to receive every immigration benefit you may apply for. That is the last I will say on this subject...

Edited January 18, 2008 by Chris Parker

[slim 1,514]

OK. I'm not going to try to sneak in the last word here because you already said you're done with this topic. But I will stick to my original point for all the newbies.

You are entitled to petition for your loved ones and provided you jump through the hoops, discretion of the C/O or whomever else over at USCIS matters not because you're doing what you're required to do.

You will hear things like "occasionally" and "it's up to the case officer's discretion" and things like that however, if you're doing what you're supposed to be doing (following the guides and suggestions here on VJ) then your case is going to be above discretion.

Don't worry, with the help of the people here on VJ and specifically in the Russia Forum, you will get your loved one here.