Controlling Documents for Legal Presence in the United States

[Nik+Heather 121]

Apparently there is a "common knowledge" issue here on Visa Journey regarding the documents which control a K-1 visa entrant's legal presence in the US.

Viewpoint A:

Status is controlled by I-94 and AOS receipt date (NOA1). A gap between I-94 expiry and AOS receipt date would result in the applicant/K-1 entrant being "out of status".

Viewpoint B:

The K-1 entrant is legally present in the US provided that they have married before the expiration date on the I-94, and they continue to be legally present after the expiration of the I-94 if they have not yet filed for Adjustment Of Status.

So, can any one point us to an "official" source, or quote law at us or link to a USCIS page which explains the nuances? I'd like view A or view B to be squashed so that we can give the correct, unopinionated information.

As a somewhat related, but not meant to be discussed in this thread note, parties of BOTH viewpoints generally concede that there will be no issue with the AOS process once AOS is filed. The question rather stems from the idea that the process, and life in general do not operate in a vacuum - more consequences (if any) should be considered than if the USCIS will throw out a late AOS filing.

[VisaJourneyLady 33]

Whaddya mean viewpoint? These are not views, one is scaremongering and the other is simply true.

[mox 298]

Apparently there is a "common knowledge" issue here on Visa Journey regarding the documents which control a K-1 visa entrant's legal presence in the US.

Viewpoint A:

Status is controlled by I-94 and AOS receipt date (NOA1). A gap between I-94 expiry and AOS receipt date would result in the applicant/K-1 entrant being "out of status".

Viewpoint B:

The K-1 entrant is legally present in the US provided that they have married before the expiration date on the I-94, and they continue to be legally present after the expiration of the I-94 if they have not yet filed for Adjustment Of Status.

You're phrasing the question wrong, I think because you seem to be under the assumption that "out of status equals illegal" or something, I'm not sure. Here's what happens: You enter on a K1 visa, which is cancelled immediately on entry. At entry you obtain a timestamped I-94. The timestamp on the I-94 governs the date that you are required to either be married to the petitioner, or gtfo. Once you have fulfilled the marriage within 90 days, you have the option of adjusting status. There is no connection between the date on the I-94 and when you are required to file AOS. There is, in fact, no requirement to adjust status at all. At all times during this process the K1 recipient is legally present in the US. You're trying to shoehorn this idea of "status" into one of two "viewpoints," but the fact is that until you have adjusted status you are "out" of status, which is not in and of itself unlawful. Whether you choose to adjust status the day after you marry, 90 days after you marry, 9 months after you marry, or not at all, you are still lawfully present within the United States.

As a somewhat related, but not meant to be discussed in this thread note, parties of BOTH viewpoints generally concede that there will be no issue with the AOS process once AOS is filed. The question rather stems from the idea that the process, and life in general do not operate in a vacuum - more consequences (if any) should be considered than if the USCIS will throw out a late AOS filing.

Huh. Somebody with a contrary nature might just take you up on this...

[Nik+Heather 121]

Whaddya mean viewpoint? These are not views, one is scaremongering and the other is simply true.

Again. Please provide sources. All I can find are DMV websites when I search, and I was hoping someone who isn't quite so hopeless at performing internet searches could help us out with the law regarding legal status so we can get things clearer. I know there are some people on VJ who are actually quite proficient at ferreting out the code governing this sort of thing.

[Nik+Heather 121]

Huh. Somebody with a contrary nature might just take you up on this...

I hoped that we could have a higher fidelity discussion, so rather than go on about something we all can agree on, and where the focus usually tends to fall, I thought that I would point out that it's not what's under contention.

Anyway, I'm interested in what the law states. What happens when a violation of that law is enforced (if it's enforced) is a different issue.

[baron555 934]

if the USCIS will throw out a late AOS filing.

I think what you're assuming is that AOS would be denied because you filed "late". I have never read that this is the case.

So there is no worry to be had here. Stop worrying.

Now AOS has been denied to some because the marriage is not provable to be ongoing or some other reason.

Now in some few cases, once that denial is made, the USCIS may (or may not) look into the difference in time between the I-94 expiration and when the AOs filing was made. They may (or may not) consider that time to be out of status and may (or may not) institute the ban criteria and may (or may not) start deportation proceedings.

So to not worry about any of this one should plan to marry within 90 days of the expiration of the I-94 and also file for AOS within the same time.

Some folks do not do a good job of budgeting ahead for this (including the potential to lose one's job or having major medical costs) or are just lazy or unaware of what to do and when to do it and they get caught in this inbetweeness.

Don't let yourself get caught iin this situation s the best answer.

And I agree with Mox, you are not illegal while you are waiting on an AOS decision, you just can not do many tnings, like legally work, etc. etc.

[mox 298]

Well you could start by getting ahold of Section 8 of the Federal Uniform Code of Regulations. But unless you're a lawyer or adept at extracting useful information from government documentation, you're going to have a hard time finding a definitive source, because it's not really spelled out like a recipe. If memory serves, I learned about this from either Rebeccajo or one of the other old-timers, who did take time to search through volumes of USCIS regulations. But they didn't just Google it, they either download the relevant CFR's or possibly had access to the hard copy.

[Bernie C 24]

Below copied from USCIS website under K Nonimmigrant. See bolded section below. I believe if I can read it says "you will have to file for adjustment of status in order to get your green card and to remain LEGALLY in the US. Those who think they know everything but dont should not provide advice to others who are concerned about doing the right thing!

Application Process

If you entered the United States as a fiancé(e) of a U.S. citizen (K-1), child of a fiancée of a U.S. citizen (K-2), or the spouse or child of a U.S. citizen (K-3 or K-4) you will have to file for adjustment of status in order to get your green card and to remain legally in the United States.

To obtain a green card, you need to file Form I-485.

If You are Present in the United States as a K-1 Fiance(e)

You should apply for adjustment as soon as you marry your fiancé(e). By law and regulations, you are required to marry the U.S. citizen who petitioned for you within 90 days of your admission to the United States in K-1 status. If you fail to marry, you will become removable from the United States and cannot adjust through any other means.

[M.O 6]

if the USCIS will throw out a late AOS filing.

I think what you're assuming is that AOS would be denied because you filed "late". I have never read that this is the case.

So there is no worry to be had here. Stop worrying.

Now AOS has been denied to some because the marriage is not provable to be ongoing or some other reason.

Now in some few cases, once that denial is made, the USCIS may (or may not) look into the difference in time between the I-94 expiration and when the AOs filing was made. They may (or may not) consider that time to be out of status and may (or may not) institute the ban criteria and may (or may not) start deportation proceedings.

So to not worry about any of this one should plan to marry within 90 days of the expiration of the I-94 and also file for AOS within the same time.

Some folks do not do a good job of budgeting ahead for this (including the potential to lose one's job or having major medical costs) or are just lazy or unaware of what to do and when to do it and they get caught in this inbetweeness.

Don't let yourself get caught iin this situation s the best answer.

And I agree with Mox, you are not illegal while you are waiting on an AOS decision, you just can not do many tnings, like legally work, etc. etc.

Agreed...

[Nik+Heather 121]

if the USCIS will throw out a late AOS filing.

I think what you're assuming is that AOS would be denied because you filed "late". I have never read that this is the case.

Sorry if I wasn't clear. I meant to say that we can call agree that USCIS will NOT throw out a "late" AOS filing. The question isn't aimed so much at what USCIS does if you don't file AOS, but what a K-1 entrant's legal status is post I-94 expiry and pre AOS filing if those dates don't overlap.

So to not worry about any of this one should plan to marry within 90 days of the expiration of the I-94 and also file for AOS within the same time.

Some folks do not do a good job of budgeting ahead for this (including the potential to lose one's job or having major medical costs) or are just lazy or unaware of what to do and when to do it and they get caught in this inbetweeness.

Don't let yourself get caught iin this situation s the best answer.

Agree that this is the conservative advice, but where is the law/code/policy source?

And I agree with Mox, you are not illegal while you are waiting on an AOS decision, you just can not do many tnings, like legally work, etc. etc.

I'm not sure that you only agree with Mox then. I believe that the "common knowledge" also agrees that "adjustment applicant" is a legal status.

I guess I wouldn't feel comfortable being anything other than conservative just because "some guy on the intarwebz says" and I have politely asked for published sources to be cited...

[mox 298]

A website (even the USCIS website) is not authoritative. There have been plenty of times that information on USCIS's website has disagreed with the law.

The CFRs are authoritative.

I guess I wouldn't feel comfortable being anything other than conservative just because "some guy on the intarwebz says" and I have politely asked for published sources to be cited...

Then what you really need to do is talk to an immigration lawyer.

[Nik+Heather 121]

The CFRs are authoritative.

Hopefully someone with access can come sort us out then. That's why I started the thread.

Then what you really need to do is talk to an immigration lawyer.

I think it's a good idea. Maybe after work.

[mox 298]

I think it's a good idea. Maybe after work.

Best to do it now, so you don't fall out of status.

[mox 298]

Doing a search of 8 CFR, I'm starting to remember why it was so difficult finding this information the last time, and the reason is that you're basically looking for a negative. I.e., we're looking for something that says you don't have to file for AOS, but all of the regulations talk about filing AOS and how K1 entrants are allowed to file for AOS. It's like looking for a law that says it's legal to walk and chew bubblegum at the same time. You can only really show that it's not illegal through the absence of anything that says it's illegal.

If anyone else has more time than I do, I think the relevant information is right around 245(d), 8 USC.

[elmcitymaven 9,712]

I just read the bulk of the applicable sections of 8 CFR, including Section 1.1 (Definitions) to get a sense of whether the regulations are drafted so that if the law is silent on a matter, it is permissible. The general tenor of the regulations is prescriptive, which leads me to believe that, in the absence of any other black letter law or indeed case law on the issue, that there is no regulation in existence in the CFR which prescribes when a K1 visa entrant must begin adjusting status. However, there may very well be other law out there.