MUST READ!!!! Married outside 90 days

[canadian_wife 1,822]

OH Gosh, I'm sorry. Not having an answer must be terrible for you. I hope you get a decision soon

Good luck.

[rebeccajo 14]

I am back from my interview and the decision was no decision. My case was returned to the State Department for consultation with their in-house lawyers. US Consulate in Rio de Janeiro did not know how to apply the law to my case. The issue is what to do because my I-94 was valid for 15 months and not 90 days as it should have been. Obviously, my I-94 is incorrect so what to do now? US Consulate doesnt know so they kicked it back to the State Dept. What is your crystal ball telling you?

What the hell are they returning the petition for?

Get one of the attorneys recommended to you by emt103c to explain to the consulate (before they return the petition) how to calculate the ban.

http://www.aila.org/content/fileviewer.asp...p;linkid=204548

Edited November 9, 2009 by rebeccajo

[klicristina 0]

I am back from my interview and the decision was no decision. My case was returned to the State Department for consultation with their in-house lawyers. US Consulate in Rio de Janeiro did not know how to apply the law to my case. The issue is what to do because my I-94 was valid for 15 months and not 90 days as it should have been. Obviously, my I-94 is incorrect so what to do now? US Consulate doesnt know so they kicked it back to the State Dept. What is your crystal ball telling you?

What the hell are they returning the petition for?

Get one of the attorneys recommended to you by emt103c to explain to the consulate (before they return the petition) how to calculate the ban.

http://www.aila.org/content/fileviewer.asp...p;linkid=204548

First of all, I want to say thank-you for this link you send to us.

Second, If you have any information on k visas law direct me to the website.

I really appreciate.

[rebeccajo 14]

I am back from my interview and the decision was no decision. My case was returned to the State Department for consultation with their in-house lawyers. US Consulate in Rio de Janeiro did not know how to apply the law to my case. The issue is what to do because my I-94 was valid for 15 months and not 90 days as it should have been. Obviously, my I-94 is incorrect so what to do now? US Consulate doesnt know so they kicked it back to the State Dept. What is your crystal ball telling you?

What the hell are they returning the petition for?

Get one of the attorneys recommended to you by emt103c to explain to the consulate (before they return the petition) how to calculate the ban.

http://www.aila.org/content/fileviewer.asp...p;linkid=204548

First of all, I want to say thank-you for this link you send to us.

Second, If you have any information on k visas law direct me to the website.

I really appreciate.

Use the lawyers recommended to you by emt103c.

Also - Hogan and Hartson in Washington, DC. Big immigration department headed by a former US Attorney who helped craft the 1996 immigration reform.

[rebeccajo 14]

I don't think you have a bar at all.

I94 determines the period of authorized stay. You filed for adjustment under family unity and are under a period of stay authorized by the Attorney General during that period. When the filing was deemed improper the clock began to tick on the bar - thus the advice of the immigration judge to get out of Dodge before a certain date.

[klicristina 0]

I don't think you have a bar at all.

I94 determines the period of authorized stay. You filed for adjustment under family unity and are under a period of stay authorized by the Attorney General during that period. When the filing was deemed improper the clock began to tick on the bar - thus the advice of the immigration judge to get out of Dodge before a certain date.

I agree with you completely, but I do have one concern that I would like your feedback on. In regard to the I-94, what is your thought on the 15 months that the CBP (Customs and Border Protection) gave my wife upon her entry to the USA. We now know that the she should have been given only 3 months (90 days), i.e., the CBP made a mistake. My wife told the US Consulate this issue at the interview and they somewhat agreed with her - meaning they agreed on points, but couldn't decide who should be punish for this mistake. Subsequently, they kicked it back to the State Department for legal guidance. Another thing that they told my wife was that they couldn't find any law to based their approval or denial of my wife case. I would appreciate your feedback on the I-94 and what possible outcomes are there from the State Department.

Thank you so much.

[rebeccajo 14]

I don't think you have a bar at all.

I94 determines the period of authorized stay. You filed for adjustment under family unity and are under a period of stay authorized by the Attorney General during that period. When the filing was deemed improper the clock began to tick on the bar - thus the advice of the immigration judge to get out of Dodge before a certain date.

I agree with you completely, but I do have one concern that I would like your feedback on. In regard to the I-94, what is your thought on the 15 months that the CBP (Customs and Border Protection) gave my wife upon her entry to the USA. We now know that the she should have been given only 3 months (90 days), i.e., the CBP made a mistake. My wife told the US Consulate this issue at the interview and they somewhat agreed with her - meaning they agreed on points, but couldn't decide who should be punish for this mistake. Subsequently, they kicked it back to the State Department for legal guidance. Another thing that they told my wife was that they couldn't find any law to based their approval or denial of my wife case. I would appreciate your feedback on the I-94 and what possible outcomes are there from the State Department.

Thank you so much.

I think the date on the I-94 was your wife's authorized period of stay.

I have a question for you - why are you letting them return this petition? Have you contacted an attorney who can speak on your behalf before the case is returned?

Edited November 10, 2009 by rebeccajo

[klicristina 0]

I don't think you have a bar at all.

I94 determines the period of authorized stay. You filed for adjustment under family unity and are under a period of stay authorized by the Attorney General during that period. When the filing was deemed improper the clock began to tick on the bar - thus the advice of the immigration judge to get out of Dodge before a certain date.

I agree with you completely, but I do have one concern that I would like your feedback on. In regard to the I-94, what is your thought on the 15 months that the CBP (Customs and Border Protection) gave my wife upon her entry to the USA. We now know that the she should have been given only 3 months (90 days), i.e., the CBP made a mistake. My wife told the US Consulate this issue at the interview and they somewhat agreed with her - meaning they agreed on points, but couldn't decide who should be punish for this mistake. Subsequently, they kicked it back to the State Department for legal guidance. Another thing that they told my wife was that they couldn't find any law to based their approval or denial of my wife case. I would appreciate your feedback on the I-94 and what possible outcomes are there from the State Department.

Thank you so much.

I think the date on the I-94 was your wife's authorized period of stay.

I have a question for you - why are you letting them return this petition? Have you contacted an attorney who can speak on your behalf before the case is returned?

Let me clarify a few things. The US Consulate in Rio de Janiero could not give my wife a decision because they basically didn't know what to do with my wife's case. The explaination that they gave my wife was that they couldn't find the law from which they could approve or deny my wife's CR1 visa. They told my wife that this is a very unique case and they never seen a case this messed up. They asked for my wife's I-94, court order, receipt notice of I-485 so that they could email it along with their explaination of my wife's situation to the lawyer within the State Department for advice on what to do. They told my wife that they will contact her within a week or two weeks maximum after they hear from the lawyer and a second interview will be set up. We did consult with two lawyers before my wife went to her interview - Heather Poole and Laurel Scott. Heather's opinion was that we should be OK at the interview. Laurel's opinion was that we will need a waiver. We have not consulted with a lawyer since the interview. We have been searching the Internet for information that could help us or give us some insights on what can/will happens next.

Any further thoughts?

[rebeccajo 14]

I don't think you have a bar at all.

I94 determines the period of authorized stay. You filed for adjustment under family unity and are under a period of stay authorized by the Attorney General during that period. When the filing was deemed improper the clock began to tick on the bar - thus the advice of the immigration judge to get out of Dodge before a certain date.

I agree with you completely, but I do have one concern that I would like your feedback on. In regard to the I-94, what is your thought on the 15 months that the CBP (Customs and Border Protection) gave my wife upon her entry to the USA. We now know that the she should have been given only 3 months (90 days), i.e., the CBP made a mistake. My wife told the US Consulate this issue at the interview and they somewhat agreed with her - meaning they agreed on points, but couldn't decide who should be punish for this mistake. Subsequently, they kicked it back to the State Department for legal guidance. Another thing that they told my wife was that they couldn't find any law to based their approval or denial of my wife case. I would appreciate your feedback on the I-94 and what possible outcomes are there from the State Department.

Thank you so much.

I think the date on the I-94 was your wife's authorized period of stay.

I have a question for you - why are you letting them return this petition? Have you contacted an attorney who can speak on your behalf before the case is returned?

Let me clarify a few things. The US Consulate in Rio de Janiero could not give my wife a decision because they basically didn't know what to do with my wife's case. The explaination that they gave my wife was that they couldn't find the law from which they could approve or deny my wife's CR1 visa. They told my wife that this is a very unique case and they never seen a case this messed up. They asked for my wife's I-94, court order, receipt notice of I-485 so that they could email it along with their explaination of my wife's situation to the lawyer within the State Department for advice on what to do. They told my wife that they will contact her within a week or two weeks maximum after they hear from the lawyer and a second interview will be set up. We did consult with two lawyers before my wife went to her interview - Heather Poole and Laurel Scott. Heather's opinion was that we should be OK at the interview. Laurel's opinion was that we will need a waiver. We have not consulted with a lawyer since the interview. We have been searching the Internet for information that could help us or give us some insights on what can/will happens next.

Any further thoughts?

If the consulate in Rio sent your wife's information to an attorney within the State Department, that does not sound like a return of the petition to me (I may have misunderstood your post yesterday morning).

From what I have read, the I94 trumps any other 'understood' periods of stay. Secondly, the judge at your wife's hearing interpreted that she was within an authorized period of stay until her erroneously filed adjustment was denied.

So IMO you have two issues - confusion as to whether or not the I94 'rules' (which I believe it does) and some confusion on when the clock for the bar began to tick.

I do think it would be helpful to have someone on your 'side' to help sway the interpretation of law in this matter. As you read in the linked PDF I gave you, it can be tricky. You need an attorney who could speedily (like NOW) prepare a letter to the consulate (complete with case citations) and ask that it be forwarded to whomever has the file at the State Department.

[klicristina 0]

I don't think you have a bar at all.

I94 determines the period of authorized stay. You filed for adjustment under family unity and are under a period of stay authorized by the Attorney General during that period. When the filing was deemed improper the clock began to tick on the bar - thus the advice of the immigration judge to get out of Dodge before a certain date.

I agree with you completely, but I do have one concern that I would like your feedback on. In regard to the I-94, what is your thought on the 15 months that the CBP (Customs and Border Protection) gave my wife upon her entry to the USA. We now know that the she should have been given only 3 months (90 days), i.e., the CBP made a mistake. My wife told the US Consulate this issue at the interview and they somewhat agreed with her - meaning they agreed on points, but couldn't decide who should be punish for this mistake. Subsequently, they kicked it back to the State Department for legal guidance. Another thing that they told my wife was that they couldn't find any law to based their approval or denial of my wife case. I would appreciate your feedback on the I-94 and what possible outcomes are there from the State Department.

Thank you so much.

I think the date on the I-94 was your wife's authorized period of stay.

I have a question for you - why are you letting them return this petition? Have you contacted an attorney who can speak on your behalf before the case is returned?

Here's my personal take on it. I don't think there is a law specifically writtened that states an I-94 for a K-1 visa is valid for only 90 days and what happens when a mistake is made on the I-94 date. The State Department might say that my wife should have known that it is for 90 days, just like everyone have expressed here on this forum. I don't see how anyone can logically decide something based on law by saying that you should know something. It is a law or not a law. If this is the case, we should have gotten a denial at the interview because the US Consulate could have use that excuse on us. They search their lawbooks, the Internet, and consulted with the head manager within the Consulate and they still couldn't decide what to do. I see my wife's case comes down to this. Who should bear the responsibility for the mistake on the I-94? Remember the I-94 drives the unlawful presence count and the 3yr/10yr ban. The I-94 is a legal document that authorizes a period of legal stay in the USA and my wife simply followed the law. What is your argument for or against my argument?

[rebeccajo 14]

I don't think you have a bar at all.

I94 determines the period of authorized stay. You filed for adjustment under family unity and are under a period of stay authorized by the Attorney General during that period. When the filing was deemed improper the clock began to tick on the bar - thus the advice of the immigration judge to get out of Dodge before a certain date.

I agree with you completely, but I do have one concern that I would like your feedback on. In regard to the I-94, what is your thought on the 15 months that the CBP (Customs and Border Protection) gave my wife upon her entry to the USA. We now know that the she should have been given only 3 months (90 days), i.e., the CBP made a mistake. My wife told the US Consulate this issue at the interview and they somewhat agreed with her - meaning they agreed on points, but couldn't decide who should be punish for this mistake. Subsequently, they kicked it back to the State Department for legal guidance. Another thing that they told my wife was that they couldn't find any law to based their approval or denial of my wife case. I would appreciate your feedback on the I-94 and what possible outcomes are there from the State Department.

Thank you so much.

I think the date on the I-94 was your wife's authorized period of stay.

I have a question for you - why are you letting them return this petition? Have you contacted an attorney who can speak on your behalf before the case is returned?

Here's my personal take on it. I don't think there is a law specifically writtened that states an I-94 for a K-1 visa is valid for only 90 days and what happens when a mistake is made on the I-94 date. The State Department might say that my wife should have known that it is for 90 days, just like everyone have expressed here on this forum. I don't see how anyone can logically decide something based on law by saying that you should know something. It is a law or not a law. If this is the case, we should have gotten a denial at the interview because the US Consulate could have use that excuse on us. They search their lawbooks, the Internet, and consulted with the head manager within the Consulate and they still couldn't decide what to do. I see my wife's case comes down to this. Who should bear the responsibility for the mistake on the I-94? Remember the I-94 drives the unlawful presence count and the 3yr/10yr ban. The I-94 is a legal document that authorizes a period of legal stay in the USA and my wife simply followed the law. What is your argument for or against my argument?

I'm not a lawyer - and with all due respect I don't think my 'argument' for or against matters, you know? You need an attorney who can speak for you.

After a 'duh' moment the other night, I googled "I94 trumps visa" and easily came up with several immigration attorneys quoting that the I94 determines period of stay. The same is quoted in the AILA memo I linked to you. If such is the case, then it matters not how the alien entered. The fact we know a K1 is only SUPPOSED to be stamped for 90 days is where everybody in the thread (including me) is getting hung up.

Like I said - get a lawyer if you really want help. We can sit here and suppose all day long but there are a couple of issues at play here besides the I94. You need someone who speaks with authority and speaks the language of the consulates. That person is not me.

[payxibka 10,045]

Here's my personal take on it. I don't think there is a law specifically writtened that states an I-94 for a K-1 visa is valid for only 90 days and what happens when a mistake is made on the I-94 date. The State Department might say that my wife should have known that it is for 90 days, just like everyone have expressed here on this forum. I don't see how anyone can logically decide something based on law by saying that you should know something. It is a law or not a law. If this is the case, we should have gotten a denial at the interview because the US Consulate could have use that excuse on us. They search their lawbooks, the Internet, and consulted with the head manager within the Consulate and they still couldn't decide what to do. I see my wife's case comes down to this. Who should bear the responsibility for the mistake on the I-94? Remember the I-94 drives the unlawful presence count and the 3yr/10yr ban. The I-94 is a legal document that authorizes a period of legal stay in the USA and my wife simply followed the law. What is your argument for or against my argument?

Your wife did not follow the law per se, but followed the erroneous I-94. Following the law would mean a 90 day stay as that is the prescribed time in the technical "law"....

Simply claiming ignorance of the law is a horrible defense and should be avoided... that is why a carefully crafted legal arguement needs to be prepared and submitted on your wife's behalf.

[klicristina 0]

I don't think you have a bar at all.

I94 determines the period of authorized stay. You filed for adjustment under family unity and are under a period of stay authorized by the Attorney General during that period. When the filing was deemed improper the clock began to tick on the bar - thus the advice of the immigration judge to get out of Dodge before a certain date.

I agree with you completely, but I do have one concern that I would like your feedback on. In regard to the I-94, what is your thought on the 15 months that the CBP (Customs and Border Protection) gave my wife upon her entry to the USA. We now know that the she should have been given only 3 months (90 days), i.e., the CBP made a mistake. My wife told the US Consulate this issue at the interview and they somewhat agreed with her - meaning they agreed on points, but couldn't decide who should be punish for this mistake. Subsequently, they kicked it back to the State Department for legal guidance. Another thing that they told my wife was that they couldn't find any law to based their approval or denial of my wife case. I would appreciate your feedback on the I-94 and what possible outcomes are there from the State Department.

Thank you so much.

I think the date on the I-94 was your wife's authorized period of stay.

I have a question for you - why are you letting them return this petition? Have you contacted an attorney who can speak on your behalf before the case is returned?

Here's my personal take on it. I don't think there is a law specifically writtened that states an I-94 for a K-1 visa is valid for only 90 days and what happens when a mistake is made on the I-94 date. The State Department might say that my wife should have known that it is for 90 days, just like everyone have expressed here on this forum. I don't see how anyone can logically decide something based on law by saying that you should know something. It is a law or not a law. If this is the case, we should have gotten a denial at the interview because the US Consulate could have use that excuse on us. They search their lawbooks, the Internet, and consulted with the head manager within the Consulate and they still couldn't decide what to do. I see my wife's case comes down to this. Who should bear the responsibility for the mistake on the I-94? Remember the I-94 drives the unlawful presence count and the 3yr/10yr ban. The I-94 is a legal document that authorizes a period of legal stay in the USA and my wife simply followed the law. What is your argument for or against my argument?

I'm not a lawyer - and with all due respect I don't think my 'argument' for or against matters, you know? You need an attorney who can speak for you.

After a 'duh' moment the other night, I googled "I94 trumps visa" and easily came up with several immigration attorneys quoting that the I94 determines period of stay. The same is quoted in the AILA memo I linked to you. If such is the case, then it matters not how the alien entered. The fact we know a K1 is only SUPPOSED to be stamped for 90 days is where everybody in the thread (including me) is getting hung up.

Like I said - get a lawyer if you really want help. We can sit here and suppose all day long but there are a couple of issues at play here besides the I94. You need someone who speaks with authority and speaks the language of the consulates. That person is not me.

It never hurts to brainstorm with someone intelligent. Thank you for all of your comments.

[Stephen + Elisha 92]

Just a quick followup: the reference cited by rebeccajo's AILA link regarding the I-94 governing the period of authorized stay (footnote 20 of the linked article) is the State Department's Foreign Affairs Manual at 9 FAM 40.92 N1(f). Also worthwhile is N1(b)(1).

http://www.state.gov/documents/organization/87120.pdf

Edited November 10, 2009 by Stephen + Elisha

[baron555 934]

[

Here's my personal take on it. I don't think there is a law specifically writtened that states an I-94 for a K-1 visa is valid for only 90 days and what happens when a mistake is made on the I-94 date. The State Department might say that my wife should have known that it is for 90 days, just like everyone have expressed here on this forum. I don't see how anyone can logically decide something based on law by saying that you should know something. It is a law or not a law. If this is the case, we should have gotten a denial at the interview because the US Consulate could have use that excuse on us. They search their lawbooks, the Internet, and consulted with the head manager within the Consulate and they still couldn't decide what to do. I see my wife's case comes down to this. Who should bear the responsibility for the mistake on the I-94? Remember the I-94 drives the unlawful presence count and the 3yr/10yr ban. The I-94 is a legal document that authorizes a period of legal stay in the USA and my wife simply followed the law. What is your argument for or against my argument?

Based on no legal experience concerning this matter but what I've read and making some personal conclusions, this is how I would rule:

You violated the terms of the K-1 by not marrying within 90 days, so your AOS (regardless of what forms you sent) would be denied.

Since you do have a legal I-94, your length of overstay would commence once that expiration date is reached.

She is now back in Brazil. You are married to her. You now have the K-3 or CR-1 paths to follow.

I would just move on with my life and not try to undo the past.

All this nonsense was started by you two not following the rules that you knew you had to, marrying within 90 days.

So to try to make this someone else's problem is just a smokescreen.

Edited November 10, 2009 by baron555