Controlling Documents for Legal Presence in the United States

[sachinky 465]

K-1 is a single entry non-immigrant visa to enter the U.S. to marry the USC petitioner within 90 days. No special privileges, whatsoever. Unless you file for AOS, you don't have legal immigrant status. Period. Otherwise, it is just like a tourist overstaying his B-2. This doesn't seem like rocket science to me.

JQ--Agreed. 100%.

[mox 298]

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.

Once again, being out of status does not equal being illegal.

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.

And once again, I am not advocating forgoing AOS. I'm saying that AOS is not a legal requirement, and that the date on the I-94 has absolutely no bearing on AOS. What people do with that information is their own business.

Look: Advising somebody to file AOS = Good. Saying that AOS is required = Bad. One is opinion, the other is the law. The point I'm trying to champion here is that people need to separate advice and opinion from the law. People NEED to know what the law is more than they need to know what your opinion is. You can certainly provide both, but mucking up the waters by stating opinion as fact helps nobody.

What does this prove?

It proves that you are in the country legally.

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

I don't recommend the "waving around the documents" method, as this makes it difficult for the immigration officer to examine them. As for this idea that not filing AOS could be a rubrik for relative stupidity levels, possibly a case could be made for this, but it really has no bearing on the legality of the situation.

[Rebecca Jo 1,962]

It proves that you are in the country legally.

Does that make the alien any less removable?

[mox 298]

Does that make the alien any less removable?

If you mean "could the government take a law-abiding immigrant off the streets and expel her from the country for absolutely no reason at all?" then I think it's unlikely. Of course there's the whole PATRIOT Act thing where the President has the power to make anybody, even natural born citizens, disappear off the face of the planet with no access to representation, so who knows? But I'd say in the general case, if the government really wanted to throw a law-abiding immigrant out of the country for absolutely no reason whatsoever, then even a mediocre immigration lawyer could probably stop that from happening.

[Nik+Heather 121]

If you mean "could the government take a law-abiding immigrant off the streets and expel her from the country for absolutely no reason at all?" then I think it's unlikely. Of course there's the whole PATRIOT Act thing where the President has the power to make anybody, even natural born citizens, disappear off the face of the planet with no access to representation, so who knows? But I'd say in the general case, if the government really wanted to throw a law-abiding immigrant out of the country for absolutely no reason whatsoever, then even a mediocre immigration lawyer could probably stop that from happening.

So, I'd really like to see the law which says that a K-1, unlike EVERY OTHER VISA HOLDER is different in that the I-94 expiration date doesn't apply to them. Anything other than that is just chewing it over, not actually getting us anywhere. Maven didn't find anything which said explicitly that it was legal, (or she didn't say), so where do you get that the K-1 is any different in terms of legal presence than any other visa. That's the question. Just saying it over again does NOT back up your position!

[klicristina 0]

So, I'd really like to see the law which says that a K-1, unlike EVERY OTHER VISA HOLDER is different in that the I-94 expiration date doesn't apply to them. Anything other than that is just chewing it over, not actually getting us anywhere. Maven didn't find anything which said explicitly that it was legal, (or she didn't say), so where do you get that the K-1 is any different in terms of legal presence than any other visa. That's the question. Just saying it over again does NOT back up your position!

I would love to see the law. My lawyers could not find it!

[sachinky 465]

So, a tourist overstays his B2 visa for about 5 years. He's not an illegal immigrant as he entered the country legally and it was not an EWI. As for his current presence in the U.S. -- would you say he is in the country "legally?"

Illegal--EWI.

Out of Status--Overstaying the terms of your visa. Or violating the terms such as working without authorization. Not exactly "legal" either.

Are you an expert in immigration affairs or a trained attorney, Mox? I'm guessing not. So your opinion, and it is just that, is just as valid as my opinion. So far, I've not seen any links to official sources agreeing to this responsibility/legally required debate you are engaging in.

Here's the thing: the date on the I94 is your authorized duration of stay. For example, for F-1s, they stamp D/S. Not a particular date but your stay depends on your I-20. For K-1s, 90 days to marry or get out. Once that expires, you're out of status. Simple.

Edited February 24, 2010 by sachinky

[mox 298]

So, a tourist overstays his B2 visa for about 5 years. He's not an illegal immigrant as he entered the country legally and it was not an EWI. As for his current presence in the U.S. -- would you say he is in the country "legally?"

We're not talking about tourist visas. We're talking about family immigration.

Illegal--EWI.

Out of Status--Overstaying the terms of your visa. Or violating the terms such as working without authorization. Not exactly "legal" either.

The K1 Visa is cancelled upon entry. When the K1 recipient crosses the POE, they are no longer in this country on a visa. You can't overstay a K1 visa.

Are you an expert in immigration affairs or a trained attorney, Mox? I'm guessing not. So your opinion, and it is just that, is just as valid as my opinion. So far, I've not seen any links to official sources agreeing to this responsibility/legally required debate you are engaging in.

I posted the relevant CFR's in a previous post. I found nothing that requires a K1 recipient to adjust status. I'm pretty sure there's not going to be a silver bullet in the CFR's that spells it out one way or the other, but I've certainly gone a lot further than anyone else (except Maven) to prove the point. The CFR's are available for you and anybody else. Why not go read them?

Here's the thing: the date on the I94 is your authorized duration of stay. For example, for F-1s, they stamp D/S. Not a particular date but your stay depends on your I-20. For K-1s, 90 days to marry or get out. Once that expires, you're out of status. Simple.

You're actually out of status the moment you enter the country. You're trying to make the K1 like every other type of visa out there. It's not. It's a strange little thing, and it doesn't play by the same rules as all the other kids.

[sachinky 465]

I guess I'm trying to understand why you think the K-1s are a separate brand altogether -- why are they so special when NOTHING indicates that they are?

What if someone entered on a B2--overstayed their visa, married a USC and then didn't file for AOS. How would that work in my above example? Suddenly they are legal and in status and afforded extra protection?

The date on the I-94 is your "authorized duration of stay"--you're not out of status when you walk out of the airport. Where do you get that idea? I was on a F-1 for four years, our international office director would always remind us to stay "in status" by taking the appropriate number of classes, working on campus for the allowed number of hours etc, -- that is, NOT violating the terms of our visa and thus, not going out of status.

Edited February 24, 2010 by sachinky

[mox 298]

I guess I'm trying to understand why you think the K-1s are a separate brand altogether -- why are they so special when NOTHING indicates that they are?

Seriously? How is a tourist visa and a K1 visa the same? What tourist visa can you think of that requires the tourist to marry? What tourist visa can you think of that is cancelled at POE? What tourist visa can you think of that allows for AOS?

What if someone entered on a B2--overstayed their visa, married a USC and then didn't file for AOS. How would that work in my above example? Suddenly they are legal and in status and afforded extra protection?

I'm not going to comment on a B2 visa, because we're not talking about B2 visas. You keep trying to fit that round peg in the square hole, but it's apples and oranges. Or, you know, round pegs and square holes. We're talking about family-based immigration here, not tourism.

[Bobby+Umit 161]

My two cents.

Disclaimer - I bounced everything I'm about to post to an immigration lawyer, a CBP officer, and a USCIS officer - because I was curious and wanted to help a buddy going though a mess with immigration.

Lets put aside the K-1 issue first.

Lets talk Status

If you come to the US as a visitor or other visa (K-1), you will be issued a I-94, and the CBP will put a date on it showing how long your authorized stay is. (

Simply put - your I-94 controls your status. It is the only thing that does. (USCIS)

Either is says a certain date or D/S (duration of stay - usually issued to students for duration of study) - If it has a date, once that expires, you are out of status.

If it says D/S, only an IJ (immigration judge) can determine if your out of status.

Again - once that "authorized stay" date is reached, you are out of status, accruing days...

Once you acquire 180+ days out of status - you are subject to a ban when you attempt to come back into the US. (very important this point - you will see it later).

If you are stopped by ICE/CBP with an out of status I-94, they can process you out of the US unless you have done something to prevent this.

(special note - specifically asked this - regardless if your married to an USC or if you came here on a K-1 - the I-94 is the only document they care about - visa's get you into the country - the I-94 or Greencard controls your status).

How do you prevent this?

Either get an extension on your I-94 or AOS legally.

I will not go over the how/who can AOS - the instructions clearly state that.

People are correct, you should have no issue being out of status prior to filing for the AOS, because, the ban doesn't kick in till you attempt to re-enter the US. If your in the US - no ban. (I told you this material would be seen again)

Unless you have some adverse reasons that prevent it - your AOS is almost assured. BUT - if your AOS is denied, and your sent home, and you went out of status 180+ days - that ban would kick in when you attempt to return to the US with a new visa (all though, it should of been caught at the embassy level and a waiver would be needed)

There is no law saying you have to file for the AOS before your I-94 expires. However, there are laws/regulations regarding the I-94, which go into play in this case.

Your type of visa does not change this for the I-94.

_______

Personal note:

Filing for the AOS helps you down the line for USC and other benefits. (like having to redo the K-1 medical if you took more than a year to AOS)

So - each person will have to make up their own mind on what to do.

I suggest - strongly - for each person to protect their status - if you do that - then no problems.

Edited February 24, 2010 by Bobby+Umit

[Rebecca Jo 1,962]

You're actually out of status the moment you enter the country.

That is incorrect.

The visa is "dead" the moment the alien enters the country. The alien is within legal status until the date of the I94.

[mox 298]

That is incorrect.

The visa is "dead" the moment the alien enters the country. The alien is within legal status until the date of the I94.

I'll concede using "out of status" rather loosely. The point I was trying to make is that until you adjust status, you don't have a status. But the main point that filing AOS does not make you illegal stands.

[Trompe le Monde 1,107]

I suppose the difference would be that overstays are usually forgiven if you are married to a USC - if you don't leave and apply to adjust status that is

of course you could be deported if you haven't adjusted for whatever reason - no a risk I'd want to take, but has it actually happened to someone who, say, didn't adjust because of financial difficulties who was married to a USC?

I'd be interested in real life examples of this and not speculation of what might happen

[sachinky 465]

You adjust your status from a prior visa such as F-1, K-1, B-2. Which is why you can't AOS from EWI, because you have no status to begin with.

The B-2 visa and K-1 are not the same, quite obviously, but on the other hand, there's nothing to indicate that the K-1 has special provisions. They're all NON-IMMIGRANT VISAS (K-1, B-2, K-3, F-1) -- each comes with their OWN CAVEATS AND STRINGS ATTACHED-- I could do the same with the F-1 and make it sound oh-so-special--Seriously, how many visas do you know that REQUIRE you to take 12 credits a semester? How many visas allow you to work only 20 hours during the semester but 40 during the summer! Oh wow! -- and unless you file for AOS you are not a legal immigrant, and thus out of status once your I-94 expires. Which is the all-important document that governs your presence in the U.S. Not the visa, itself. Not your marriage.

You think the USCIS website is wrong, you think KliCristina's lawyers were wrong, you think almost everybody on this forum is an idiot. Now I look forward to you saying the immigration lawyer, USCIS personnel and CBP officer Bobby+Umit spoke to are all morons and know nothing.

Always fun to argue with folks like you.