MUST READ!!!! Married outside 90 days

[klicristina 0]

Here is my situation. I am an American citizen and my Brazilian fiance at the time came to the USA on March 3, 2007 on a K1 visa. We didn't get married within the 90 days, but rather at a later time on December 21, 2007. On February 27, 2008, we filed a change of status (I-485) before my wife's I-94 expired on May 1, 2008. We knew that we could not adjust my wife's status because we didn't get married within the 90 days requires by the K1 visa. Instead, we filed the I-485 based my wife's marriage to me, an American citizen. To complicate things further, we filed only the I-485 without the I-130 included. On July 29, 2008, we received a denial letter from USCIS stating that we couldn't adjust my wife's status because she entered the USA on a K1 visa and that we didn't get married within the 90 days window. We consulted with several lawyers and were adviced that we could adjust my wife's status based on her marriage to a United States citizen. We immediately retained a lawyer and filed an I-130. While waiting around, my wife was put into removal hearing with a court date of December 3, 2008. While the judge was sympathetic to our situation and totally believed that we have a bonifide marriage, he informed us that there was no legal ground from which my wife could adjust her status because she was a K1 visa holder and that we didn't get married within the 90 days window. The judge told us that my wife needed to leave the USA before January 17, 2009 to avoid the 3 year ban. My wife returned to Brazil on a voluntary departure order from the court on Juanuary 10, 2009. After going through this whole process, we now know that there was no way to adjust my wife's status because she entered the country on a K1 visa. My wife is having an interview soon and we would like to know the following questions. Has my wife incurred any unlawful presensce in the USA during the time she entered the USA on March 3, 2007 until the time she left on January 10, 2009 that would caused her to to have a 3 year or 10 year ban? Are there any legal issues about my situation that would prevent my wife from getting a CR1 visa, for example her I-94 was about one year and three months long?

We would appreciate any comments or opinions.

Steve & Kelly

[payxibka 10,045]

Her I-94 from her K-1 entry should have expired on or about June 1, 2007 (based on a March 3rd entry)... At that time she began to accrue "out of status" time until the day she left... If her out of status time was more than 180 days and less than 365 she will incur a 3 yr ban. If more than 365 days then it is a 10 yr ban. From the facts you present it would appear the 10 yr ban has been triggered.....

If the ban is in place, when applying for a visa, she will be denied at interview... You will then have the opportunity to apply for a waiver on the ban. You cannot apply for the waiver before a visa is denied, so it is not possible to jump start the waiver process.

moving thread to the waiver forum... you need to learn as much about the waiver process as possible... it is a long and difficult road

Edited October 28, 2009 by payxibka

[klicristina 0]

Thank you for your comment. My wife's I-94 expired on May 1, 2008. I am not a lawyer so I can speak with 100% certainty that the I-94 should or should not expired in 90 days. I am simply stating the facts about my case. We went by the date on the I-94. I have a couple of questions. Should my wife be penalized for a mistake on the date stamped by someone else? How can any goverment agency hold my wife accountable for not noticing that mistake, if indeed, the I-94 should only last for 90 days? I would also like to point out that the judge during the removal hearing did not ruled that the I-94 had to expired 90 days after my wife entered the USA. The judge knew that my wife I-94 was 1 year and 3 months long. Any further comments will be appreciated.

[JERIII 8]

Here is my situation. I am an American citizen and my Brazilian fiance at the time came to the USA on March 3, 2007 on a K1 visa. We didn't get married within the 90 days, but rather at a later time on December 21, 2007. On February 27, 2008, we filed a change of status (I-485) before my wife's I-94 expired on May 1, 2008. We knew that we could not adjust my wife's status because we didn't get married within the 90 days requires by the K1 visa. Instead, we filed the I-485 based my wife's marriage to me, an American citizen. To complicate things further, we filed only the I-485 without the I-130 included. On July 29, 2008, we received a denial letter from USCIS stating that we couldn't adjust my wife's status because she entered the USA on a K1 visa and that we didn't get married within the 90 days window. We consulted with several lawyers and were adviced that we could adjust my wife's status based on her marriage to a United States citizen. We immediately retained a lawyer and filed an I-130. While waiting around, my wife was put into removal hearing with a court date of December 3, 2008. While the judge was sympathetic to our situation and totally believed that we have a bonifide marriage, he informed us that there was no legal ground from which my wife could adjust her status because she was a K1 visa holder and that we didn't get married within the 90 days window. The judge told us that my wife needed to leave the USA before January 17, 2009 to avoid the 3 year ban. My wife returned to Brazil on a voluntary departure order from the court on Juanuary 10, 2009. After going through this whole process, we now know that there was no way to adjust my wife's status because she entered the country on a K1 visa. My wife is having an interview soon and we would like to know the following questions. Has my wife incurred any unlawful presensce in the USA during the time she entered the USA on March 3, 2007 until the time she left on January 10, 2009 that would caused her to to have a 3 year or 10 year ban? Are there any legal issues about my situation that would prevent my wife from getting a CR1 visa, for example her I-94 was about one year and three months long?

We would appreciate any comments or opinions.

Steve & Kelly

You say that her I-94 was dated more than year after her arrival - do you have a copy of that I-94?

You also say that the judge at the court told you that your wife needed to leave before 17 Jan 2009. Do you, by any chance, have some sort of record of that? Were the proceedings done with a court reporter?

[payxibka 10,045]

Thank you for your comment. My wife's I-94 expired on May 1, 2008. I am not a lawyer so I can speak with 100% certainty that the I-94 should or should not expired in 90 days. I am simply stating the facts about my case. We went by the date on the I-94. I have a couple of questions. Should my wife be penalized for a mistake on the date stamped by someone else? How can any goverment agency hold my wife accountable for not noticing that mistake, if indeed, the I-94 should only last for 90 days? I would also like to point out that the judge during the removal hearing did not ruled that the I-94 had to expired 90 days after my wife entered the USA. The judge knew that my wife I-94 was 1 year and 3 months long. Any further comments will be appreciated.

regardless if it is May 1, 2008 or June, 2007... in either situation with a January, 2009 departure the facts would support one of the re-entry bans... because the minimum threshold of 180 days was exceeded.

[klicristina 0]

Yes, I do have the photocopy of the I-94. In addition, I have the court order for a voluntary departure where the judge stating his words exactly, "Respondent is departing US prior to her 180 day to AVOID the 3 year ban and immigrate as an immediate relative. Facts of this case are sympathetic. Bonafides of marriage have been established." I have my wife's airplane ticket showing that she arrived in Brazil on January 10, 2009.

The judge based his 180 day count from July 29, 2008, the date my wife was denied the AOS. The judge ruled that my wife was out of status from July 29, 2008.

How much does a court order from a immigration judge affects the decision-making of the US Consulate on a specific case?

[MsSheka 0]

Looks like she will get a ban according to INA depending on which one she gets that determines if she will be eligible for a waiver BTW the I-94 has nothing to do with her status..they would have given her a stamp based on the visa class which she entered but it would be up to her to take the proper steps to ensure she maintains legal status while she is present in the US, because you can enter on a K1 and get married within the 90 days and submit AOS but might not get AOS approval until months later....it (I-94) will however prove that she entered the US legally

( B ) ALIENS UNLAWFULLY PRESENT.-

(i) In general.-Any alien (other than an alien lawfully admitted for permanent residence) who-

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e)) prior to the commencement of proceedings under section 235( b )(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, or

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States,is inadmissible.

(ii) Construction of unlawful presence.-For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.

(v) Waiver.-The Attorney General has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien. No court shall have jurisdiction to review a decision or action by the Attorney General regarding a waiver under this clause.

(9) ALIENS PREVISOUSLY Removed.-

(A) Certain aliens previously removed.-

(i) Arriving aliens.-Any alien who has been ordered removed under section 235( b )(1) or at the end of proceedings under section 240 initiated upon the alien's arrival in the United States and who again seeks admission within 5 years of the date of such removal (or within 20 years in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible.

(ii) Other aliens.-Any alien not described in clause (i) who-

(I) has been ordered removed under section 240 or any other provision of law, or

(II) departed the United States while an order of removal was outstanding, and who seeks admission within 10 years of the date of such alien's departure or removal (or within 20 years of such date in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible.

(iii) Exception.-Clauses (i) and (ii) shall not apply to an alien seeking admission within a period if, prior to the date of the alien's reembarkation at a place outside the United States or attempt to be admitted from foreign contiguous territory, the Attorney General has consented to the alien's reapplying for admission.

Edited October 28, 2009 by MsSheka

[Bocajr27 3]

Yes, I do have the photocopy of the I-94. In addition, I have the court order for a voluntary departure where the judge stating his words exactly, "Respondent is departing US prior to her 180 day to AVOID the 3 year ban and immigrate as an immediate relative. Facts of this case are sympathetic. Bonafides of marriage have been established." I have my wife's airplane ticket showing that she arrived in Brazil on January 10, 2009.

The judge based his 180 day count from July 29, 2008, the date my wife was denied the AOS. The judge ruled that my wife was out of status from July 29, 2008.

How much does a court order from a immigration judge affects the decision-making of the US Consulate on a specific case?

Hi;

I'd like to share my experience so that you can make an educated decision on your wife’s case. My wife was applying for political asylum. Last year October, she had a hearing in which the asylum was denied. Our attorney reserved the right to appeal the case, but we decided that it would be better if she left the US while I filed the I-130 from here. The I-130 was approved and on the day of our interview we were put on AP (Administrative Processing) which lasted 30 days. Once out of AP we were told by the Embassy that my wife was eligible for the visa, but that we needed to file the waiver I-212 (permission to re-enter the US) with the local USCIS Office in Miami.

We filed that waiver I-212 and two days later received a letter stating that they received it, and that it would take approximately 1-year to process. Obviously, I wasn't about to wait so I took it upon myself to make an INFOPASS with the USCIS Office that was handling the form to see if I could get it expedited. I was lucky enough to find people in that office that helped me get the Expedite Request to the right officer.

Two days after I visited USCIS, I received a package in the mail. I was devastated when I opened it and saw that it was the package that I sent USCIS with the waiver filed I-212. Along with the package was the attached letter. They were stating that I needed to file the I-601 and the I-212 together at the embassy. After extensively researching the issue, I knew that they were mistaken and decided to do another INFOPASS for two days later. I spent three hours talking to three different supervisors and 2 officers. Long story short, I walked out of there with the I-212.

Here's where they made the mistake. They said my wife was out of status for over a year, when in fact, any person who has a current asylum petition on file will not have the time (while the asylum petition is current) count against him or her. This is what you have to remember. When your wife had her hearing, she was (to my knowledge) legally in the US. Therefore, your I-130 will probably be approved but chances are that you will have to file I-212 (permission to re-enter the US). Keep all of your documentation safe. It is the only thing that can prove she still had legal presence when she decided to self deport.

By the way, we didn't hire a lawyer for this process. We did it ourselves and were lucky enough to have my wife’s visa in hand in 8-months from the time I filed the I-130. You need to be prepared for it to be a longer wait than that, but persistence and education pays off. Do not give up just because you find a road block.

Good Luck

[Jasman0717 9]

There has been posts of people reporting that they didn't get married before the I-94 expired and didn't have any problems when they filed for adjusting status. It certainly isn't a good idea of going past the 90 day limit.

[DoneWaiting 15]

Unfortunately the asylum scenario will not work with your case. We are required to get marry within 90 days, don’t forget you and your fiancée signed a document stating you will get marry within the required time. Also, if you fail to comply the K-1 process/requirements, the person must return to the country of origin. At this point, since you technically violated the rules your fiancée become illegal. Getting married didn't solve the legal status, at least to the immigration department or the USCIS

Now, I am not saying you are out of options because is always an exception to the rule. I have heard other cases where your congressman gets involve in the situation. You need to get familiar with the law, regulation and contract as many knowledgeable people to get the best option for your wife. Before making any wrong moves that might create other problems to your situation.

Edited October 28, 2009 by ImWaiting

[klicristina 0]

Hi everyone. I just want to put this question out there for everyone to comment. Given the fact that sole purpose of a K-1 visa is to get married and to do so within 90 days upon arrival, if not, you have to leave the country. Let's assume that I did not get married within the 90 days. When is this date to leave? 91st, 92nd, 100th day? or when the I-94 expired? My wife's I-94 happens to expire 1 year and 3 months after arrival.

[Darnell 8,478]

Yes, I do have the photocopy of the I-94. In addition, I have the court order for a voluntary departure where the judge stating his words exactly, "Respondent is departing US prior to her 180 day to AVOID the 3 year ban and immigrate as an immediate relative. Facts of this case are sympathetic. Bonafides of marriage have been established." I have my wife's airplane ticket showing that she arrived in Brazil on January 10, 2009.

The judge based his 180 day count from July 29, 2008, the date my wife was denied the AOS. The judge ruled that my wife was out of status from July 29, 2008.

How much does a court order from a immigration judge affects the decision-making of the US Consulate on a specific case?

IMO - if she left prior to the date the judge mentioned -

Then she'll be ok come time to interview at a consulate.

If she left AFTER that date, then she's got a huge risk of the ban ...

Whilst she was in DEPORTATION HEARING - it is my opinion that she was not DEPORTED - instead - she 'voluntarily departed' the country.

But hei - I'm not a lawyer, nor do I play one on TV - but the differences in those two phrases are bazillion miles apart. As long as she wasn't DEPORTED, she should be ok.

GOING FORWARD, though -- make sure she has copies of ALL of the court documents prior to interview day - she'll probably need to present them.

I'd also pay attention to the EXIT STAMP on her passport - (did she get an exit stamp at the USA Airport? ) - if it has any codes , letters, or numbers on it - ya better cross-reference EXACTLY what they mean.

If there were no codes on the stamp - she has no proof that she was actually DEPORTED.

Good Luck !

[Darnell 8,478]

Hi everyone. I just want to put this question out there for everyone to comment. Given the fact that sole purpose of a K-1 visa is to get married and to do so within 90 days upon arrival, if not, you have to leave the country. Let's assume that I did not get married within the 90 days. When is this date to leave? 91st, 92nd, 100th day? or when the I-94 expired? My wife's I-94 happens to expire 1 year and 3 months after arrival.

This is an accurate statement.

YOU MUST MARRY within 90 days. There is common linkage (cause mostly it's done this way ) that the I-94 expiration date matches the end of the time window to get married. In your wife's case, she got an expiration date that was WAY PAST a 90 day window.

The onus to 'get married' is 'within 90 days of POE date', not 'before I-94 expiration date' .

YOU DO NOT HAVE TO FILE FOR AOS within 90 days of POE date.

Disclaimer - I am not a lawyer, nor do I play one on TV. i can be had, though, for at least 1 KG of COOKED FOOD (frozen is fine ).

[JERIII 8]

Thank you for your comment. My wife's I-94 expired on May 1, 2008. I am not a lawyer so I can speak with 100% certainty that the I-94 should or should not expired in 90 days. I am simply stating the facts about my case. We went by the date on the I-94. I have a couple of questions. Should my wife be penalized for a mistake on the date stamped by someone else? How can any goverment agency hold my wife accountable for not noticing that mistake, if indeed, the I-94 should only last for 90 days? I would also like to point out that the judge during the removal hearing did not ruled that the I-94 had to expired 90 days after my wife entered the USA. The judge knew that my wife I-94 was 1 year and 3 months long. Any further comments will be appreciated.

regardless if it is May 1, 2008 or June, 2007... in either situation with a January, 2009 departure the facts would support one of the re-entry bans... because the minimum threshold of 180 days was exceeded.

I'm not sure that's right. Generally, out of status time does not accrue while a petition is under consideration, so filing the AOS before the I-94 expired and leaving within 180 days after the petition was denied would not trigger a ban. If the immigration judge says there she would not be banned, I think you should not assume there will be one because of advice from VJ.

I do this you need a lawyer - a different lawyer.

[baron555 934]

Hi everyone. I just want to put this question out there for everyone to comment. Given the fact that sole purpose of a K-1 visa is to get married and to do so within 90 days upon arrival, if not, you have to leave the country. Let's assume that I did not get married within the 90 days. When is this date to leave? 91st, 92nd, 100th day? or when the I-94 expired? My wife's I-94 happens to expire 1 year and 3 months after arrival.

Day #90 is the day to leave by. The I-94 date does not trump the K-1 requirements. Just because a mistake was made when the I-94 was issued and dated incorrectly does not alleviate you from the requirement to marry within 90 days (which means before day #90) or else leave.