MUST READ!!!! Married outside 90 days

[lucyrich 20]

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.

Exactly right. If anybody is qualified to interpret immigration law as it applies to a particular case, it would be an immigration judge. That is the judge's job, and the judge's word is the authority. I'd trust the judge before I'd trust an immigration attorney or a random VJ poster.

Not only that, but in this case, the judge's judgement is backed up by the Department of State:

http://www.immigrationlinks.com/news/news309.htm

IN GENERAL, ALIENS WHO HAVE A PENDING APPLICATION TO ADJUST STATUS TO PERMANENT RESIDENCE UNDER INA 245 ARE CONSIDERED IN A PERIOD OF AUTHORIZED STAY FOR PURPOSES OF INA 212(A)(9)(B) ("9B"). THEREFORE, SUCH ALIENS WOULD NOT ACCRUE ANY UNLAWFUL PRESENCE FOR 9B PURPOSES DURING THE PENDENCY OF THE APPLICATION TO ADJUST STATUS.

So as long as the I-485 was filed before the I-94 expired, then even if the I-94 expired, the "180 day" clock wouldn't have started ticking until the adjustment of status application was denied.

[klicristina 0]

Where are you getting this information? Is it your personal opinion or is your opinion based on law? Can you direct me to this law on the internet?

Thank you for all the comments.

[lucyrich 20]

Where are you getting this information? Is it your personal opinion or is your opinion based on law? Can you direct me to this law on the internet?

Thank you for all the comments.

To whom are you directing that query?

Anyway, here's yet another reference, direct from the USCIS, that you'll probably want to read in great detail.

http://www.uscis.gov/files/nativedocuments...edesign_AFM.PDF

Note especially example 2 on page 10. It describes a situation very similar to the one you describe, where an alien's I-94 expired, but he filed an application to adjust status. When the I-94 expires, he begins a period of unlawful status, but there is no period of unlawful presence for the purpose of the 9B bars while the application for adjustment of status is pending.

Edited October 28, 2009 by lucyrich

[klicristina 0]

THANK YOU very very very much LUCYRICH....

[IT_1 0]

I think, some are making more difficult for you: rather then help. I am sorry to say that. Law is Law, but judge paper will count and he has power in court and on the paper what he/she said will help you.

Edited October 28, 2009 by IT_1

[Caramel 3]

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.

Phil, I totally agree with you. Even if there was a mistake on the I-94 you as the individual knew that you have to get married within 90 days. I believe you knew it was a mistake but you tried to you it to your advantage, but obviously it backed fired on your part. Good luck

[klicristina 0]

CARAMEL, What advantages are you talking about? We were awared of the 90 day policy. This is life and sometimes things dont worked out as you planned.

[Old Dominion 26]

To answer the question originally asked, your wife must say YES. She did remain illegally after the 90-day K-1 time frame expired. The I-94 has nothing to do with legal presence; it merely proves in her passport that she entered the U.S. legally and was checked out. I suspect no lawyer can help you around this situation.

At the interview, which we hope you will attend with her to provide moral support and explanations if asked) a court-certified copy of the judge's order should be presented. If she is denied her visa, then you can apply for the waiver as mentioned earlier.

As to the I-130 now in process, we hope you did not withhold or otherwise cover up any of the relevant facts. Anyway, it is now irrelevant. Right or wrong, the law is the law and the consulate has no choice but to abide by it.

Good luck!

[Brother Hesekiel 2,236]

This case is rather unusual, so I doubt that anyone can make a judgement call with any degree of certainty. So we are all uttering our opinions, and hopefully that will provide some kind of feedback to the OP.

First of all, adjustment of status based on the marriage to a USC via I-130 and I-485 is very common, at which time the overstay will be forgiven, provided that the beneficiary entered the country with a visa to begin with, meaning not EWI. That's the case here, as a K-1 is a valid visa.

It beats me that they denied the AOS.

More importantly, a US immigration judge ruled that if the OP's wife leaves the country by a certain date via VD, she would avoid the 3-year ban. The judge furthermore ruled that the bona fide qualifier of the marriage has been established.

This is a very powerful document, which makes me believe that it should be sufficient to get a spousal visa in Brazil.

What in the immigration world can trump the ruling of an immigration judge?

[Twisted K 2]

tough situation. good luck it will be interesting to see how it all pans out.

[lucyrich 20]

First of all, adjustment of status based on the marriage to a USC via I-130 and I-485 is very common, at which time the overstay will be forgiven, provided that the beneficiary entered the country with a visa to begin with, meaning not EWI. That's the case here, as a K-1 is a valid visa.

It beats me that they denied the AOS.

AOS was denied because no I-130 was filed. After the 90 days K-1 period expired, there's no basis for adjustment of status without an I-130. That was an unfortunate mistake.

More importantly, a US immigration judge ruled that if the OP's wife leaves the country by a certain date via VD, she would avoid the 3-year ban. The judge furthermore ruled that the bona fide qualifier of the marriage has been established.

This is a very powerful document, which makes me believe that it should be sufficient to get a spousal visa in Brazil.

What in the immigration world can trump the ruling of an immigration judge?

Exactly.

[SuperDuper! 230]

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.

Not a good idea?! It's illegal. The K1 conditions say that the beneficiary MUST get married within 90 days, or return home.

You like sugar coating, but I'm on a sugar-free diet, so I wont take it.

Peace.

[DeniseBill 4]

After reading all this I just wonder why you people don't get married within the timelimit given to you. It would've saved you a lot of trouble.....

Edited October 29, 2009 by DeniseBill

[john_and_marlene 162]

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.

Not a good idea?! It's illegal. The K1 conditions say that the beneficiary MUST get married within 90 days, or return home.

You like sugar coating, but I'm on a sugar-free diet, so I wont take it.

Peace.

Just exactly where is the condition "or return home" specified? Can you give a reference?

The requirement is that to adjust status based on the K-1 entry, you must get married to the original petitioner within 90 days. If you marry outside the 90 days, you cannot adjust status based on the K-1 entry, but you can adjust status as the immediate family member of your USC spouse by submitting the I-130 with the I-485. The immediate relative petition is then the basis for adjustment.

I suppose it would be more accurate to say you MUST get married within 90 days and adjust status based on the K-1 entry OR get married after the 90 days and submit the I-130 along with the adjustment OR go home.... OR be out of status

Edited October 29, 2009 by john_and_marlene

[klicristina 0]

This case is rather unusual, so I doubt that anyone can make a judgement call with any degree of certainty. So we are all uttering our opinions, and hopefully that will provide some kind of feedback to the OP.

First of all, adjustment of status based on the marriage to a USC via I-130 and I-485 is very common, at which time the overstay will be forgiven, provided that the beneficiary entered the country with a visa to begin with, meaning not EWI. That's the case here, as a K-1 is a valid visa.

It beats me that they denied the AOS.

More importantly, a US immigration judge ruled that if the OP's wife leaves the country by a certain date via VD, she would avoid the 3-year ban. The judge furthermore ruled that the bona fide qualifier of the marriage has been established.

This is a very powerful document, which makes me believe that it should be sufficient to get a spousal visa in Brazil.

What in the immigration world can trump the ruling of an immigration judge?

I totally agree with you. One point I would like to make. The judge ruled that because my wife came into the US on the K-1 visa, this is particular visa doesn't allowed her to adjust her status just because she married to a USC. Had she came in with any other visas, she would been able to adjust her status based her marriage to a USC by filing an I-485 and I-130. This is our understanding from the judge. K-1 is very restrictive.

What is going to make or break my wife's interview is whether the US consulate is going to agree with the judge's ruling that my wife did not stayed beyond the 180 days, which means that the government has to accept the mistake with the I-94 being valid for 15 months instead of the normal 3 months. The key is the expiration date on the I-94. Who should accept responsibility for the error on the I-94 is what I want to know? Please reply.