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

[john_and_marlene 162]

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. Such period will also cover renewal of a denied application in proceedings. An alien who first files an application for adjustment of status after being served with a notice to appear for removal proceedings (Form I-862), however, is not deemed to have a period of stay authorized by the Attorney General.

http://www.murthy.com/arc_news/a_gnasa.html

[rebeccajo 14]

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. Such period will also cover renewal of a denied application in proceedings. An alien who first files an application for adjustment of status after being served with a notice to appear for removal proceedings (Form I-862), however, is not deemed to have a period of stay authorized by the Attorney General.

http://www.murthy.com/arc_news/a_gnasa.html

Yes, this is right. Whilst a K1entrant awaits a decision on their adjustment, the alien is 'considered' to be in a period of authorized stay.

This authorized stay is not to be confused with a particular immigrant status, as - well - there isn't one.

[tenika 0]

Today I spoke to someone at the USCIS phone line. I called 2x to try to get some clarity. They said the K-1 visa is an exception to the rule as long as their is proof of marriage within 90 days. They claim that the 180 day rule does not apply to my husband as long as we married within the 90 days and removal proceedings were not initialized for some other offense.

We will still send in the 131 but will not leave the country until speaking to at leas 2 immigration officers in person regarding this.

As I said before, his father is pretty sick and may die if we wait for the Permanent Residency, but we will not take chances on him not being able to come back to the US

[toma1 10]

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;

Virtually ALL K-1s go out of status for a time. Even if you've done the AOS paperwork in advance, marry at O'Hare airport, and hand deliver the paperwork to the USCIS Chicago office the same day you arrived, you are unlikely to get the green card in 90 days (which is when your passport stamp expires.

[TinTin and Samby 11]

Today I spoke to someone at the USCIS phone line. I called 2x to try to get some clarity. They said the K-1 visa is an exception to the rule as long as their is proof of marriage within 90 days. They claim that the 180 day rule does not apply to my husband as long as we married within the 90 days and removal proceedings were not initialized for some other offense.

We will still send in the 131 but will not leave the country until speaking to at leas 2 immigration officers in person regarding this.

As I said before, his father is pretty sick and may die if we wait for the Permanent Residency, but we will not take chances on him not being able to come back to the US

First, i wish you and your husband good wishes for the health of his father.

Pleae do not rely on information you receive from the 1-800 line. It is very very well documented that an AP, even if granted by uscis, may NOT BE SUFFICIENT to regain entrance to the US, even if you are currently filed and awaiting AOS adjudication, if you have accrued more than 180 days of OUT OF STATUS time during ANY TIME SINCE YOU ENTERED THE US. So, this means that if there was more than 180 days between the expiration of your husbands I-94 and the NOA date of his AOS filing, then this WILL affect you.

Best collective advise: Wait for the Green Card in hand, then there will be no problems.

Do a search on Visa Journey, You will find many threads including documentation of this directly from USCIS Case Officers. (Note the folks at the 1-800 number are NOT USCIS Case Officers).

Good luck to you.

Warm Regards,

Samby

[rickynlucy 0]

Today I spoke to someone at the USCIS phone line. I called 2x to try to get some clarity. They said the K-1 visa is an exception to the rule as long as their is proof of marriage within 90 days. They claim that the 180 day rule does not apply to my husband as long as we married within the 90 days and removal proceedings were not initialized for some other offense.

We will still send in the 131 but will not leave the country until speaking to at leas 2 immigration officers in person regarding this.

As I said before, his father is pretty sick and may die if we wait for the Permanent Residency, but we will not take chances on him not being able to come back to the US

An exception to the rule in the form of being able to apply for AOS while "out of status". But NOT an exception to the 3 and 10 year bans. The ban does not kick in until you leave the country. You need to be very clear about what you are asking. If he leaves the country with 180 days of overstay you'll be looking at a ban.

There is a free attorney chat every wed on visacentral.net by a lawyer that specializes in bans and waivers. Old chats are posted on the site as well. You might want to take a look.