Controlling Documents for Legal Presence in the United States

[mox 298]

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.

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

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.

A lot of people believe there exists an invisible man who watches everything we do and hears everything we say. As it turns out, this is a terrible, delusional way to run a planet. "Belief," "opinion," and "take" are all synonyms for opinion--er...except for "opinion" of course, which is just a normal old nym for opinion--and it's opinion that drives the big problem of well-intentioned but misleading advice on these boards. This isn't a discussion about belief, it's a discussion about How Stuff Works™.

My "opinion," my "belief," and my "take" on the situation is as I have stated: a K1 entrant should adjust status at the earliest possible time. I agree with the post quoted from Rebeccajo that people should, to the extent possible, add in the cost of AOS to The Process™ and plan accordingly. This isn't a controversial opinion, I think all but the most misguided VJ citizen would agree.

Removing my belief hat now. A K1 entrant is NOT REQUIRED to file AOS before the I-94 expires. There are no penalties, there is no risk to being expelled from the country, and if/when the K1 entrant does get around to filing AOS, the green card they receive is exactly the same greencard as the K1 entrant who filed on day 1 of their I-94.

[Rebecca Jo 1,962]

Removing my belief hat now. A K1 entrant is NOT REQUIRED to file AOS before the I-94 expires. There are no penalties, there is no risk to being expelled from the country, and if/when the K1 entrant does get around to filing AOS, the green card they receive is exactly the same greencard as the K1 entrant who filed on day 1 of their I-94.

I believe that on May 31, 2020 my trust fund will pay out. On that date I will have at my disposal $1M.

Until that date though I still have no money. I can't buy food or gasoline. I can't heat my house or pay the light bill. I can go buy stuff on credit but I can't make the payments. I can find myself in receipt of letters from creditors asking for their money. I wonder if they will wait until May 31, 2010.

[TBoneTX 45,264]

There are no penalties, there is no risk to being expelled from the country

Has anyone phoned a CBP port to ask what happens in practice, si man? There ARE posts on VJ from people who were detained at great length, si man.

[Nik+Heather 121]

Pardon?

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

http://www.visajourney.com/forums/index.ph...t&p=3739942

This thread was started because there is confusion on the part of some people about whether or not a K-1 has any special provisions such that if they fulfill the terms of their visa (marriage within 90 days) that they do not go out of status (or whatever) with the expiry of the I-94. It's obvious how things are when you look at someone who entered on a B-2 (as was discussed in your link). Please don't take this as a dig or even disagreement. I'm just trying to drive the discussion to a satisfactory conclusion, without leaving room for "But that only applies to OTHER visas". (Like here: http://www.visajourney.com/forums/index.ph...&p=3738940)

This assertion is just one example, but I have seen similar posted in other places, so I'm looking for clarification regarding the K-1 as a specific case.

There's nothing inherently illegal about being out of status. Being out of status just means you haven't adjusted status. Hell, you're out of status the moment you pass the POE. It's not really a gray area, it is what it is. The I-94 has nothing to do with status. The timestamp on the I-94 only indicates the date you have to either be married to the petitioner or gtfo. The K1 recipient's passport, I-94, and marriage certificate is the only documentation necessary to stay in the country.

Edited February 24, 2010 by Nik+Heather

[mox 298]

I believe that on May 31, 2020 my trust fund will pay out. On that date I will have at my disposal $1M.

Until that date though I still have no money. I can't buy food or gasoline. I can't heat my house or pay the light bill. I can go buy stuff on credit but I can't make the payments. I can find myself in receipt of letters from creditors asking for their money. I wonder if they will wait until May 31, 2010.

Dunno. Good luck with that though.

[Nik+Heather 121]

"But that only applies to OTHER visas". (Like here: http://www.visajourney.com/forums/index.ph...&p=3738940)

Dang, the edit window closed & I had C/Pd the wrong link...

http://www.visajourney.com/forums/index.ph...t&p=3741022

Edited February 24, 2010 by Nik+Heather

[sachinky 465]

I've read severals posts by people or their spouses who had not filed for AOS after their I-94 expired and they were detained when unable to prove lawful presence after a run-in with law enforcement agencies.

You're required to file for AOS otherwise you are out of status and starting acquiring illegal presence (which ceases once your status changes to AOS pending). AOS is simply the next step to the K-1. Sure, you don't HAVE to file for AOS -- that is if you don't plan to drive or work or travel and are content with staying at home and grocery shopping.

The K-1 has no special provision apart from the AOS. You file the I485 to adjust status from a K-1. If you're AOS from a B2, you need to file the I-130 and I485 concurrently as an immediate relative of a USC. Same thing if you happen to marry outside the 90 days on a K-1. The K-1 is a single entry into the U.S. and is voided at POE. Even the B2 is a multiple entry 10 year visa.

[TBoneTX 45,264]

I believe that on May 31, 2020 my trust fund will pay out.

Do you trust in your fund, si man?

[mox 298]

I've read severals posts by people or their spouses who had not filed for AOS after their I-94 expired and they were detained when unable to prove lawful presence after a run-in with law enforcement agencies.

Proof: I-94 + Passport + Marriage certificate. That's all you need. A poorly trained officer or the K1 recipient's failure to provide these documents is a different matter entirely.

You're required to file for AOS otherwise you are out of status and starting acquiring illegal presence (which ceases once your status changes to AOS pending). AOS is simply the next step to the K-1. Sure, you don't HAVE to file for AOS -- that is if you don't plan to drive or work or travel and are content with staying at home and grocery shopping.

Sorry but it's either one or the other. You got it right in your last sentence.

[klicristina 0]

Dang, the edit window closed & I had C/Pd the wrong link...

http://www.visajourney.com/forums/index.ph...t&p=3741022

When are you out-of-status??? When your K-1 visa expire or I-94?

[sachinky 465]

The thing is even if you provide those things: I-94, Passport and Marriage Certificate and the date on the I-94 has passed, then quite simply you're OUT OF STATUS. So what is that proof of? Unlawful presence. Despite legal entry and marriage to USC. You're out of status and that doesn't change unless you file for AOS.

And if a poorly trained officer is going to decide whether you are going to be detained or not, I'm not sure I want to be taking that chance.

What I meant to say was that if you want to lead a normal life then yes, you're required to file for AOS but no one is going to force your arm to do it if you wish to stay at home and not venture much beyond the local supermarket.

I-94 is what allows your duration of stay. For K-1s, that is 90 days. Similar to B2, those visas are usually valid for 10 years but the I-94 is usually 3-6 months.

Ok, this is getting boring now. Apply common sense and when it comes to matters of immigration, err on the side of caution.

Toodles.

Edited February 24, 2010 by sachinky

[Rebecca Jo 1,962]

http://www.visajourney.com/forums/index.ph...t&p=3739942

This thread was started because there is confusion on the part of some people about whether or not a K-1 has any special provisions such that if they fulfill the terms of their visa (marriage within 90 days) that they do not go out of status (or whatever) with the expiry of the I-94. It's obvious how things are when you look at someone who entered on a B-2 (as was discussed in your link). Please don't take this as a dig or even disagreement. I'm just trying to drive the discussion to a satisfactory conclusion, without leaving room for "But that only applies to OTHER visas". (Like here: http://www.visajourney.com/forums/index.ph...&p=3738940)

This assertion is just one example, but I have seen similar posted in other places, so I'm looking for clarification regarding the K-1 as a specific case.

I didn't take it as a disagreement at all. My linear thought processes just needed clarification. Written word and all that, you know.

I've never read anything in the code nor seen anything through reading experience which would imply some sort of legal immigrant status to a K entrant beyond expiration date of their I94. I'm honestly confused as to how anyone could think there would be such a privilege.

The only thing a K visa does is allow a foreign born person entrance to the US to marry a US citizen. Period.

If there was some preserved legal status by virtue of a K1 entry, why would status adjustment even be required?

You don't have to be a K1 entrant to marry a US citizen and file to adjust. I think readers to these forums forget that. All that "forgiveness" of overstaying a prior status and working without authorization is a grant of an approved adjustment via the family relationship to a USC. Those are not privileges derived from the K.

[Nik+Heather 121]

When are you out-of-status??? When your K-1 visa expire or I-94?

The visa expiration date DEFINITELY has no bearing after entry, the I-94 expiration is the new date. This thread is driving at when "out of status" or "legal presence" begins/ends.

[Nik+Heather 121]

You don't have to be a K1 entrant to marry a US citizen and file to adjust. I think readers to these forums forget that. All that "forgiveness" of overstaying a prior status and working without authorization is a grant of an approved adjustment via the family relationship to a USC. Those are not privileges derived from the K.

Yes, the fact that it's retroactively forgiven and not forgiven in the present doesn't always get communicated...I think it's hurtful for people who get caught in the "present" before their adjustment goes through and the slate gets cleared.

[Rebecca Jo 1,962]

Proof: I-94 + Passport + Marriage certificate. That's all you need. A poorly trained officer or the K1 recipient's failure to provide these documents is a different matter entirely.

What does this prove?

Being married to a US citizen doesn't offer an alien any protections unless their status adjustment has approved.

Waving around the documents that you COULD have filed to become a permanent resident doesn't prove anything other than .................stupidity.