Controlling Documents for Legal Presence in the United States

[LaL 418]

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.

are you sure about that? because I know full well rjo understood the ramifications of adjusting on a timely basis.

ETA a good read : http://www.visajourney.com/forums/index.ph...t&p=2486976

Edited February 24, 2010 by LaL

[Kathryn41 3,205]

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.

Here is the source of the above, btw - note it is from USCIS. http://www.uscis.gov/portal/site/uscis/men...000082ca60aRCRD

It also states: By allowing a fiancé(e) and his/her accompanying minor children to be admitted to the United States as nonimmigrants, fiancé(e)s can be spared a long separation from their intended spouse, while continuing their processing for an immigrant visa after the marriage takes place. indicating that filing to adjust status is expected.

Edited February 24, 2010 by Kathryn41

[mox 298]

are you sure about that? because I know full well rjo understood the ramifications of adjusting on a timely basis.

ETA a good read : http://www.visajourney.com/forums/index.ph...t&p=2486976

It might have been RJ, or not, I don't remember. But the post you linked echoes my own sentiments: plan for every step of the journey, and file for AOS as soon as possible. But that's opinion. The law in this case doesn't hold us to our opinions.

[HeatDeath 430]

I don't know if an unambiguous true answer to your question exists, and if it does it is much more likely to be found in case law than in the code of federal regulations. By means of an analogy from computer science, here is why:

In computer programming, computer applications are usually designed around what are called "use cases". The designer writes out a series of scenarios that will represent typical sequences of the the user is expected to use the application. These scenarios are then used by the programmers to create a program that will work the way the designer described in the use cases.

The difficulty comes because, to steal the old aphorism about battle plans, no use case survives contact with the user Users can usually be counted on to act completely differently than any use case created by a computer savvy developer, to do things in random order, and to generally work very hard to knock the application off of it's well planned rails and into la-la land.

A common technique when developing computer applications, to prevent this from happening, is to use what is called a "gremlin generator" - another program that will throw repeatable but utterly random sequences of user interface events at a program. Doing this can reveal bugs in the program that would otherwise be completely invisible, because no sane human being (by the definition of the designer who wrote up the use cases) would ever use the program that way.

I suspect immigration law is basically equivalent to computer code written using use cases. The visa, AOS, ROC, and naturalization processes were designed with the assumption that no "sane" human being would ever attempt to do things out of the "logical" order, or with unusual delays between parts of the processes that are intended to be temporally adjacent. These weird ambiguities we frequently discuss here, like the legality and consequences of being "out-of-status", or the legality and consequences of adjusting from a nonimmigrant visa, are prime examples of situations the laws were never intended to deal with. That is why we see that these situations are incompletely and ambiguously addressed, when addressed at all, in the posted laws, and are only addressed (and incompletely at that) in the legal "emergency patches" of case law.

Case law is the debris left where the formal system hits reality. It is what is left over when a human officer, confronted with a situation the law is silent about, has to make a decision one way or another, simply to inject some compassion into the machine or, more frequently, just to allow everyone to get on with their day. Officers usually try to make sure their case decisions are compatible with and similar to other case decisions, but there will always be small inconsistencies with other decisions in case law, and even with the posted regulations themselves.

Those of us posting here are more likely than the general population to be technologically savvy. We are accustomed to working with formal systems (computer programs) that deliver clear, unambiguous, reasonably correct outputs for the vast vast majority of possible inputs. The law is no such beast. If you attempted to analyze it for completeness and consistency, or to write a computer program that perfectly and consistently implemented it, that program would crash almost instantaneously. The mere attempt to write it would reveal a galactically vast array of ambiguities and inconsistencies, the merest attempt of which to document would fill entire libraries. Indeed, this is exactly what has happened with the recent introduction of automatic tax software - a specific and intentional attempt to regularize and formalize a body of civil law.

It is for these reasons that, despite well intentioned and well informed instincts to the contrary, I don't feel it is reasonable to expect that questions regarding the content of immigration law have well defined and consistent answers when applied to cases completely beyond the expectations or conceptions of the lawmakers who designed the system.

[TBoneTX 45,264]

Heather, amidst some other very good suggestions, try this: Pick three CBP ports, preferably along the Texas/Mexico border, phone them, and ask the question. I suggest calling three ports because you could get a better description from one than from another, and because three similar answers (presuming similarity) would constitute a pattern of consistency in enforcement & explanation of the governing law.

You may find CBP agents who are willing to speak with you in depth or detail if you call after 10 p.m. or midnight, when some ports are closed to traffic for the night, si man: http://www.cbp.gov

Alternatively, if you wish to call during business hours, you can usually get right through to Mike Perez, the outstanding Port Director of Del Rio, TX. He is extremely congenial and informative, si man.

[TBoneTX 45,264]

[...] It is for these reasons that, despite well intentioned and well informed instincts to the contrary, I don't feel it is reasonable to expect that questions regarding the content of immigration law have well defined and consistent answers when applied to cases completely beyond the expectations or conceptions of the lawmakers who designed the system.

You have outdone yourself in eloquence, literacy, and elegant reasoning, si man. Egad, but what a breath of fresh air on VJ you are, si man.

This inspires a self-piggybacking upon the message that I posted near-contemporaneously with HeatDeath's, si man: When you phone the CBP ports, ask them whether black-letter law does exist, and, if not, how CBP and perhaps ICE settled upon their procedures to deal with out-of-statusism. Not every agent to whom you speak may be able to answer this, but you may get some interesting insights, si man.

Speaking to the general air, I continue to believe that "out of status" intrinsically (and, in practice) can or does mean that "you're in trouble large or small, si man." The government has unlimited time & resources to make our life miserable, so I adhere to the "large" end of things, sigh man.

[sachinky 465]

This is just my layman understanding but a K-1 is sort of like a one time tourist visa to enter the U.S. and marry your original USC petitioner in 90 days. If you marry outside the 90 days, you can still file for AOS but as an immediate relative of a USC, and not off your K-1. Once your I94 expires, you're out of status just like overstaying a B2 visa would be. So it is advised to get married and file for AOS before the 90 days are up. However, overstaying/out of status is not illegal in the sense an EWI would be. However, unless you do "adjust your status" you're not a LPR and don't enjoy any of the basic rights. It's similar to a tourist overstaying his I-94 date. The process doesn't end with the acquisition of the K-1. The AOS is a natural progression.

Edited February 24, 2010 by sachinky

[Rebecca Jo 1,962]

It might have been RJ, or not, I don't remember. But the post you linked echoes my own sentiments: plan for every step of the journey, and file for AOS as soon as possible. But that's opinion. The law in this case doesn't hold us to our opinions.

What would be your opinion of the term "out of status" then?

I know this would all be so-much-easier to understand if there were a place in the INA, the CFR, the Field Adjudicator's Manual or even some Interoffice Memorandum of the Service that black-and-white-in-your-face said "K1 must file for Adjustment of Status by the date on their I-94 or the adjustment will be denied". Since it's not out there though, I'm going to operate under the assumption you can't be convinced that the definition of "out of status" applies just as equally to a K1 as it would any other alien. Why that would be I have absolutely no idea.

Here's a transcript from an online Q&A with attorney Laurel Scott. Page 7 has an interesting question, response and footnote.

http://www.scottimmigration.net/Chat0506.pdf

ratpynn:

Hi Laurel! It appears that my wife triggered the 10 year ban by

leaving the US prior to filing for AOS & having accrued about 18

months of "unlawful presence". My questions is, does the the 10 year

ban start the day after we were married(she came her on a K-1), or

does it begin the day she left the US? I guess I'm trying to figure what

our options are at this point, and unfortunately none of them look

good from where I'm standing...thanks for your help!!!

Laurel:

I was just talking about this with my paralegal this morning - is the alien

accruing unlawful presence after the marriage, but before the authorized

stay as listed on the I-94 has expired? A married person can't be a K1, so

by that reasoning, the person is out of status2. But as no one files an AOS

on the date of the marriage, it seems unreasonable (not that the INA is

reasonable) that the person goes out of status on that date. I'm not 100%

sure of the answer. But I can tell you that for you its moot. A person is in

lawful K1 status for no more than 90 days. If your wife was potentially out

of status for 18 months, then even if you cut three months off, its still over

a year. So either way, she needs a waiver.

Footnote: Subsequent research indicates that the K1 remains in status for the full 90 days after entering as a K1, regardless

of when the marriage occurs. The K1 would not be accumulating unlawful presence until the end of the 90 days.

Before you say, ‘well of course …’, bear in mind that immigration law does not always make sense, so don’t

presume what the law is based on the logic of normal people.

[belinda63 3,038]

it's a long morning and i'm bored so here is my take on the situation.

You are legal until the I-94 expires.

If you marry within the 90 days the petitioner for the K-1 you have the right to file for AOS

Between the expiration date of the I-94 and filing of the AOS you are out of status and subject (though very unlikely) to being removed from the US as you have no status to be here.

Have a good morning everyone.

[sachinky 465]

Interesting read, JQ. Makes sense considering that the once the I94 expires, the alien begins to accrue overstay and illegal presence. As this woman had not filed for AOS when she left the country, her overstay earned her a 10 year ban.

[Eric_Jew Nug 2]

every single law that is created is done with loopholes, these loopholes are often left there deliberately, why? so as a mean of allowing the wealthy and "prudent" a means of weaseling their way through the everyday restrictions of life that bounds normal people. the only time these loopholes are closed, is when it becomes apparent to the creators, that too many person have become aware of it, and it can no longer adequately suit their needs. (my opinion)

[Nik+Heather 121]

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.

Thanks for looking that up, Maven. I have a couple of other questions - probably stemming from my lay person understanding of the words you used, which I'm sure have quite specific and lengthy legal definitions.

Checking for understanding: I think you said that the section that you were reading describes the K-1 visa and its privileges in a creative "The K-1 is" sort of way instead of "The K-1 is not". And that furthermore, you could not find any mention about K-1s and their status after marriage.

I wonder if it is a correct understanding to say that if the code does not specifically say that the K-1 status is somehow special in that the K-1 visa + a marriage certificate shows legal presence indefinitely, why would we not assume that the question of status goes back to default just like any other visa. By that I mean, just like any B-2 etc, when the I-94 expires, status is gone, unless AOS has been filed?

[Rebecca Jo 1,962]

I wonder if it is a correct understanding to say that if the code does not specifically say that the K-1 status is somehow special in that the K-1 visa + a marriage certificate shows legal presence indefinitely, why would we not assume that the question of status goes back to default just like any other visa. By that I mean, just like any B-2 etc, when the I-94 expires, status is gone, unless AOS has been filed?

BTW, even a status adjustment applicant who filed within the date of their last legal status has no defined status until their AOS is approved. An alien with an accepted I485 who is outside the date of their last legal stay is considered to be in a "period of stay authorized by the Attorney General".

[Nik+Heather 121]

BTW, even a status adjustment applicant who filed within the date of their last legal status has no defined status until their AOS is approved. An alien with an accepted I485 who is outside the date of their last legal stay is considered to be in a "period of stay authorized by the Attorney General".

Yeah, I had just read your post which clarifies the difference. I thought that the sections you had posted and the lawyer-ly interpretation quoted was interesting. The grace period ("period of stay authorized by the Attorney General") granted to people who have made a filing was only considered valid in the case described when the filing was made before the I-94 expired.

http://www.ansarilawfirm.com/docs/Interpre...ney-General.pdf

(and Johnny's summary here: http://www.visajourney.com/forums/index.ph...&p=3739942)

I wish that it was for K-1s, as that's the sort of thing I was hoping to find, as there is this idea that K-1 visas confer a special status which is no longer defined by the I-94...

[Rebecca Jo 1,962]

I wish that it was for K-1s, as that's the sort of thing I was hoping to find, as there is this idea that K-1 visas confer a special status which is no longer defined by the I-94...

Pardon?

I'm not following you......