Can my hubby get approved for AP if he overstayed K-1

[tenika 0]

My husband came up here on a K-1 visa and we married withing the 90 days. I then lost my job with a mortgage company, had a baby and a lot of other life changes where I was file the paperwork. As a result he is considered out of status (I think) as he has been in the country for 2 years without us filing the AOS.

Now I am ready to finally send it off, and I found a cosponsor but I am concerned about the AP. It says if you have been in the country unlawfully for over 180 days and you leave you could be banned from US for between 3 -10 years. Does anyone know if my hubby would indeed be considered unlawfully in the US under this criteria? Should I just not send it in?

PLEASE HELP

[rickynlucy 0]

He won't be banned unless he leaves the country. As long as he remains in the country until he receives his green card then he will be fine. There is no reason to apply for AP since he won't be able to use it.

[Gary and Alla 3,694]

My husband came up here on a K-1 visa and we married withing the 90 days. I then lost my job with a mortgage company, had a baby and a lot of other life changes where I was file the paperwork. As a result he is considered out of status (I think) as he has been in the country for 2 years without us filing the AOS.

Now I am ready to finally send it off, and I found a cosponsor but I am concerned about the AP. It says if you have been in the country unlawfully for over 180 days and you leave you could be banned from US for between 3 -10 years. Does anyone know if my hubby would indeed be considered unlawfully in the US under this criteria? Should I just not send it in?

PLEASE HELP

You are not going to be able to apply for AOS in the normal manner as he is more than 180 days out of status. Perhaps someone here has an experience with this. He is, indeed, unlawfully in this country, that IS what "out fo status" means.

[Krikit 1,164]

You are not going to be able to apply for AOS in the normal manner as he is more than 180 days out of status. Perhaps someone here has an experience with this. He is, indeed, unlawfully in this country, that IS what "out fo status" means.

Just correcting some misinformation. The overstay will not affect the AOS for a K-1 visa holder. It will be "forgiven" at the approval.

Tenika, it doesn't hurt to apply for the AP since the cost is covered in the AOS application. However, it is difficult to predict how a CBP officer will handle the situation should your husband leave the country and try to reenter. That long of an overstay carries a 10 year bar. Under those circumstances it is advised never to tempt fate.

Edited May 6, 2009 by Krikit

[TayRivers 4]

My husband came up here on a K-1 visa and we married withing the 90 days. I then lost my job with a mortgage company, had a baby and a lot of other life changes where I was file the paperwork. As a result he is considered out of status (I think) as he has been in the country for 2 years without us filing the AOS.

Now I am ready to finally send it off, and I found a cosponsor but I am concerned about the AP. It says if you have been in the country unlawfully for over 180 days and you leave you could be banned from US for between 3 -10 years. Does anyone know if my hubby would indeed be considered unlawfully in the US under this criteria? Should I just not send it in?

PLEASE HELP

You are not going to be able to apply for AOS in the normal manner as he is more than 180 days out of status. Perhaps someone here has an experience with this. He is, indeed, unlawfully in this country, that IS what "out fo status" means.

I am not sure what you mean by "You are not going to be able to apply for AOS in the normal manner"

You file for AOS in the same way anyone else would. The only difference is that there is no point in applying for AP as your husband has accruded more than 365 days of unlawful presence in the US and if he tried to re-enter the US he would be banned for 10 years.

He must not depart the US until he has been approved for his Greencard and has it in his hand. Other than not being able to use the AP he can file for AOS in the same way anyone else can.

[^KK^ 3]

My husband came up here on a K-1 visa and we married withing the 90 days. I then lost my job with a mortgage company, had a baby and a lot of other life changes where I was file the paperwork. As a result he is considered out of status (I think) as he has been in the country for 2 years without us filing the AOS.

Now I am ready to finally send it off, and I found a cosponsor but I am concerned about the AP. It says if you have been in the country unlawfully for over 180 days and you leave you could be banned from US for between 3 -10 years. Does anyone know if my hubby would indeed be considered unlawfully in the US under this criteria? Should I just not send it in?

PLEASE HELP

You are not going to be able to apply for AOS in the normal manner as he is more than 180 days out of status. Perhaps someone here has an experience with this. He is, indeed, unlawfully in this country, that IS what "out fo status" means.

WTH??? Please add a disclaimer to your signatures...you don't know what you're talking about.

My husband came up here on a K-1 visa and we married withing the 90 days. I then lost my job with a mortgage company, had a baby and a lot of other life changes where I was file the paperwork. As a result he is considered out of status (I think) as he has been in the country for 2 years without us filing the AOS.

Now I am ready to finally send it off, and I found a cosponsor but I am concerned about the AP. It says if you have been in the country unlawfully for over 180 days and you leave you could be banned from US for between 3 -10 years. Does anyone know if my hubby would indeed be considered unlawfully in the US under this criteria? Should I just not send it in?

PLEASE HELP

You are not going to be able to apply for AOS in the normal manner as he is more than 180 days out of status. Perhaps someone here has an experience with this. He is, indeed, unlawfully in this country, that IS what "out fo status" means.

I am not sure what you mean by "You are not going to be able to apply for AOS in the normal manner"

You file for AOS in the same way anyone else would. The only difference is that there is no point in applying for AP as your husband has accruded more than 365 days of unlawful presence in the US and if he tried to re-enter the US he would be banned for 10 years.

He must not depart the US until he has been approved for his Greencard and has it in his hand. Other than not being able to use the AP he can file for AOS in the same way anyone else can.

[rebeccajo 14]

My husband came up here on a K-1 visa and we married withing the 90 days. I then lost my job with a mortgage company, had a baby and a lot of other life changes where I was file the paperwork. As a result he is considered out of status (I think) as he has been in the country for 2 years without us filing the AOS.

Now I am ready to finally send it off, and I found a cosponsor but I am concerned about the AP. It says if you have been in the country unlawfully for over 180 days and you leave you could be banned from US for between 3 -10 years. Does anyone know if my hubby would indeed be considered unlawfully in the US under this criteria? Should I just not send it in?

PLEASE HELP

You are not going to be able to apply for AOS in the normal manner as he is more than 180 days out of status. Perhaps someone here has an experience with this. He is, indeed, unlawfully in this country, that IS what "out fo status" means.

He's not here unlawfully. He would have had to entered without inspection for that.

He is out of status.

Illegal presence is not the same thing as being out of status.

As for a 'normal' AOS filing - there is no such thing. There are different 'ways' (insofar as paperwork) for aliens to file for adjustment of status based upon the manner in which they entered the country and their immigrant status at the time of filing.

Edited May 6, 2009 by rebeccajo

[Eric-Pris 1,606]

Forget about the AP... don't even waste your time with the form. Better safe than very sorry later.

DO NOT LEAVE THE US UNTIL YOU HAVE THE GREENCARD IN YOUR HAND.

[NCWife 0]

I am also in similar situation. My K-1 Visa expired on 9/14/08 but we got married before that. We didn't have the financial means to follow through with AOS after the wedding but now after months of savings and husband's new job, we are planning to file this month or early next month. We are both concerned too since I have been out of status for 8 months. I am not too worried about AP since we don't have plans to travel out of the US until I get my AOS approved.

Anyways, just to confirm what everyone is saying - We can go on with our AOS filing like normal without having to provide extra document since I am out of status now? We just looking into submitting the AOS and EAD forms but not the AP form.

Thanks...

P/S: To the OP, sorry for hijacking your thread. I feel like we are in a very similar situation so I really don't want to start a new thread. Perhaps we could learn from each's situation Thanks.

[Gary and Alla 3,694]

My husband came up here on a K-1 visa and we married withing the 90 days. I then lost my job with a mortgage company, had a baby and a lot of other life changes where I was file the paperwork. As a result he is considered out of status (I think) as he has been in the country for 2 years without us filing the AOS.

Now I am ready to finally send it off, and I found a cosponsor but I am concerned about the AP. It says if you have been in the country unlawfully for over 180 days and you leave you could be banned from US for between 3 -10 years. Does anyone know if my hubby would indeed be considered unlawfully in the US under this criteria? Should I just not send it in?

PLEASE HELP

You are not going to be able to apply for AOS in the normal manner as he is more than 180 days out of status. Perhaps someone here has an experience with this. He is, indeed, unlawfully in this country, that IS what "out fo status" means.

I am not sure what you mean by "You are not going to be able to apply for AOS in the normal manner"

You file for AOS in the same way anyone else would. The only difference is that there is no point in applying for AP as your husband has accruded more than 365 days of unlawful presence in the US and if he tried to re-enter the US he would be banned for 10 years.

He must not depart the US until he has been approved for his Greencard and has it in his hand. Other than not being able to use the AP he can file for AOS in the same way anyone else can.

If I am wrong, I will gladly apologize for the confusion. However the OP has clealry stated her husband has been out of status more than 180 days (2 years). It is my understanding from all we have read here that an out of status condition exceeding 180 days (270 days from US entry) creates a problem for K-1 adjustment. Can anyone cite the exclusion that allows a K-1 longer, or unlimited, out of status condition before adjusting status? Really I would like to know as I prefer to give correct answers, even if they are not the popular ones. In fact the instructions for the I-485 rule ineligible anyone who has not maintained their status. I know that this is routinely "forgiven" (if it is not against the rules, there is nothing to "forgive") if the condition does not exceed 180 days.

[tenika 0]

Thanks everyone.

We want to be on the safe side. We will submit the AP just because it is included in the filing. However we will not be heading out of the country without any guarantee he will be allowed back in. It is unfortunate though, as his father is very sick and hubby wants to see him before he dies and let his father see his new grandchildren.

I am sad about this...but we will not take a chance with a 10 ban.

[rebeccajo 14]

My husband came up here on a K-1 visa and we married withing the 90 days. I then lost my job with a mortgage company, had a baby and a lot of other life changes where I was file the paperwork. As a result he is considered out of status (I think) as he has been in the country for 2 years without us filing the AOS.

Now I am ready to finally send it off, and I found a cosponsor but I am concerned about the AP. It says if you have been in the country unlawfully for over 180 days and you leave you could be banned from US for between 3 -10 years. Does anyone know if my hubby would indeed be considered unlawfully in the US under this criteria? Should I just not send it in?

PLEASE HELP

You are not going to be able to apply for AOS in the normal manner as he is more than 180 days out of status. Perhaps someone here has an experience with this. He is, indeed, unlawfully in this country, that IS what "out fo status" means.

I am not sure what you mean by "You are not going to be able to apply for AOS in the normal manner"

You file for AOS in the same way anyone else would. The only difference is that there is no point in applying for AP as your husband has accruded more than 365 days of unlawful presence in the US and if he tried to re-enter the US he would be banned for 10 years.

He must not depart the US until he has been approved for his Greencard and has it in his hand. Other than not being able to use the AP he can file for AOS in the same way anyone else can.

If I am wrong, I will gladly apologize for the confusion. However the OP has clealry stated her husband has been out of status more than 180 days (2 years). It is my understanding from all we have read here that an out of status condition exceeding 180 days (270 days from US entry) creates a problem for K-1 adjustment. Can anyone cite the exclusion that allows a K-1 longer, or unlimited, out of status condition before adjusting status? Really I would like to know as I prefer to give correct answers, even if they are not the popular ones. In fact the instructions for the I-485 rule ineligible anyone who has not maintained their status. I know that this is routinely "forgiven" (if it is not against the rules, there is nothing to "forgive") if the condition does not exceed 180 days.

Gary -

There is virtually no difference between a K1 who files on the 1st day after their I94 expires and one who files on the 700+ day. Both are out of status. The only practical difference comes into play if they decide to exit the country. (I use the term 'practical difference' because ICE is simply way to busy to be chasing down every legal entrant who has become an 'overstay).

If these K1's who have not filed to adjust choose to leave the US, even though they are married to a US citizen, the bar will then kick in if they have accrued any time past the date of their I94.

This is not unlike a K1 entrant who has filed to adjust, but leaves the country without an advance parole document. They have no 'legal leg' to seek re-admission to the US because they have no status.

There is nothing in the INA that defines the status of a K1 entrant who has not yet received their residency. Once an adjustment application is filed, the alien is at best considered an 'applicant awaiting adjustment'. The law affords protections against removal while that petition is in process. Some legal experts consider a K1 who has filed to be under 'color of law' while they await their decision.

Every K1 becomes out of status if they don't have permanent residency on the 91st day, even if they have filed the petition before the expiration of their I94.

K1's who file before the expiry of the I94 have a small upper hand (in court if need be) because they can prove they did everything within THEIR POWER to preserve their status within the law. They not only fulfilled the terms of their visa, but they filed to change their status while they were within another legal status.

Edited May 6, 2009 by rebeccajo

[rebeccajo 14]

*bump*

[TBoneTX 45,273]

*re-bump*

[Krikit 1,164]

In fact the instructions for the I-485 rule ineligible anyone who has not maintained their status.

From Page 2 of the I-485 instructions where it states who is not eligible re overstays, etc.:

..... UNLESS you are applying because you are:

ii. A K-1 fiancé(e) or a K-2 fiancé(e) dependent who married the U.S. petitioner within 90 days of admission;