Biometrics - Infopass

[TBoneTX 45,288]

OP: Heed Krikit, si man. Never underestimate or trifle with CBP.

[sachinky 465]

Here's the thing: CBP will not give two hoots as to what USCIS has to say since re-entry is at the discretion of the CBP and bans don't fall under the realm of USCIS authority. Consult with an attorney. With her overstay, there is a good chance she would be denied entry at the border even with her AP. I'd strongly urge you not to leave the country until the AOS is approved and you have the GC in hand.

And FYI: The K-1 visa is voided on entry into the U.S. The I-94 has the duration of the status, which is 90 days for the K-1. Why on earth would the I-94 void at the border when it is generated there itself?

[Kathryn41 3,205]

Well, with a few appointments to our local office we've learned that she is NOT out of status and will be able to travel once AP is granted. No bans. That is for all other visa types that overstay. I appreciate everyone's input but I guess I should have gone to our local office first. I trust the few officers I spoke to who have worked there for many years.

She is not out of status now because she has filed for the AOS and upon filing her status is restored. It does not, however, erase the 'out of status' time from when the I-94 expired to when she filed. If that is more than 180 days, then when she leaves the US it will trigger an automatic 3 year ban upon re-entry. If it is more than 1 year, then it will trigger an automatic 10 year ban. The ban can be overcome but it is difficult and requires the filing of a hardship waiver wherein you have to prove the hardship to you of her not being allowed back in the US or the hardship for you for having to leave to US to wait out her ban. Work commitments and missing each other don't count as hardships. In many cases it actually means having to start the immigration paperwork all over again with a spousal visa after the ban has expired.

Once the AOS is approved then any out of status days she has are forgiven and she is free to leave and return to the US - not before - even for those who entered on a K-1. The I-94 for the K-1 is valid only for 90 days. The status given by the K-1 expires after 90 days if the couple does not marry and if they marry later, they cannot apply to adjust status based upon the K-1. Because you married within the terms of the K-1 you are allowed to adjust status based upon it but it does not negate the fact that you have accumulated out of status days from the time the I-94 expired and you applied for the AOS.

As others have stated, it is not USCIS who determines if she will be allowed back in or not. It is the border authorities. There have been enough VJers who have left the US with an AP and out of status days for us to have learned from their experiences. They are currently outside of the US having to restart the immigration process all over again - after waiting out their bans upon re-entry.

At the very least, seek out a consultation with a knowledgeable and competent immigration attorney before you make any decisions you may later regret.

Edited February 14, 2010 by Kathryn41