Controlling Documents for Legal Presence in the United States

[sachinky 465]

Trompe--Here's one example from VJ. The discussion picks up somewhere in the middle.

http://www.visajourney.com/forums/index.php?showtopic=167516

[Rebecca Jo 1,962]

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.

What?

I think you are mixing up "illegal presence" and "out of status". There are slight differences between the two, but neither is a good place to be.

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

I don't know about actual removals, but there have been several posters to this community who claim their out-of-status spouses have been detained. Someone will probably remember their names.

[mox 298]

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.

Why would I say Bobby+Umit is wrong? He backed up what I've been saying all along: "There is no law saying you have to file for the AOS before your I-94 expires."

Always fun to argue with folks like you.

Folks like me? WTH? Just because I'm black all of a sudden I'm "folks like you?"

Haha just kidding, I'm not black. But seriously yeah, it's pretty much idiots all the way down. But hey, it looks good on you!

KIDDING! Jeez peeps lighten up.

[Trompe le Monde 1,107]

I don't know about actual removals, but there have been several posters to this community who claim their out-of-status spouses have been detained. Someone will probably remember their names.

I imagine they could be detained, which is obviously why you want to file AOS within the 30 days, but actually deported? Unless there were other mitigating issues I'd be surprised if that actually did happen, though I would be interested in seeing real life examples to see what the circumstances may have been.

I'd wager that someone who is 3 months out of status because, say, the USC lost their job and they couldn't afford to file, is highly unlikely to actually be deported.

[Brother Hesekiel 2,236]

This must be the most interesting discussion since I joined VJ.

After having followed this discussion thoroughly, I reverse my position to my original one, pretty much based on what Bobby just stated. While it is true that there is no law spelling out "K-1 visa holders who have married their petitioning spouse within the 90 day time frame are required to file for AOS within the I-94's time frame," it just makes sense that such an interpretation is implemented. And the interpretation of existing law is what creates case law and precedent.

Whether a B2 visa holder marries a USC during their I-94's validity, or a K-1 visa holder does the same seems to achieve the same outcome: both are married to a USC while having entered the US legally.

In order to preserve the legal status and not become out-of-status, in both cases the AOS would have to be filed before the I-94 expires. With an expired I-94, both, the tourist and the former fiancee, have become an immediate relative of a USC. Still, being an immediate relative, or even a spouse, does not equal immigration benefits. Such benefits have to be assigned/granted, which happens when a petition to adjust status from tourist, or finance, or investor, to immigrant is granted and the applicant becomes a LPR.

When filing for AOS late, again in both examples, an "out-of-status" time will be forgiven (excluding adverse circumstances), yet when detained by ICE while out of status, the K-1, plus the expired I-94 plus the marriage certificate only prove that the detainee has entered the country legally (just like the B2) and married their USC spouse (just like the B2).

Yet, if no AOS has been submitted to USCIS, I fail to believe that either one would be released.

Imagine a K-1 marries their petitioning spouse, but never files for AOS. Years later, they split, perhaps divorce. Showing the K-1, the expired I-94 and the marriage certificate proves what?

Let's take it a step further. The same former K-1 marries again after her divorce, the files for AOS. Wouldn't work, because the requirement of the K-1 is that she marries the petitioning USC, right? But she did! Then she divorced him. Years later she married. If she was legal all these years, just hasn't filed for AOS, why would an AOS now being denied (and it will be denied)?

Your turn guys.

[sachinky 465]

"There is no law saying you have to file for the AOS before your I-94 expires."

Finally, Mox, something we agree on. However, once your I-94 does expire, you're technically out of status till the AOS NOA1. And I guess this discussion was more about when the out-of-status begins/ends and why you think the K-1 is different from everything other visa regarding the authorized stay as designated on the I-94.

[Rebecca Jo 1,962]

I imagine they could be detained, which is obviously why you want to file AOS within the 30 days, but actually deported? Unless there were other mitigating issues I'd be surprised if that actually did happen, though I would be interested in seeing real life examples to see what the circumstances may have been.

I'd wager that someone who is 3 months out of status because, say, the USC lost their job and they couldn't afford to file, is highly unlikely to actually be deported.

It's just like any other infraction.

There has to be some reason to get "their" attention.

Notwithstanding, no one ever really knows when they might "come up against it" with the Service. This subject came up quite a lot when persons were getting held up for months (or years) waiting on greencards due to name check issues, especially as regards the leverage of the applicant to file Writ of Mandamus against the Service and prevail. Those aliens who had placed themselves directly from legal status to period of stay authorized by the Attorney General were considered to be in the catbird seat should the Writ become necessary.

[Rebecca Jo 1,962]

In order to preserve the legal status and not become out-of-status, in both cases the AOS would have to be filed before the I-94 expires. With an expired I-94, both, the tourist and the former fiancee, have become an immediate relative of a USC. Still, being an immediate relative, or even a spouse, does not equal immigration benefits. Such benefits have to be assigned/granted, which happens when a petition to adjust status from tourist, or finance, or investor, to immigrant is granted and the applicant becomes a LPR.

No no no no...............

You have no legal status between the time your I94 expires and the date status adjustment is approved. Even if you file for it before the I94 expires.

All you have is "a period of stay authorized by the Attorney General". Basically - you are allowed to stay put while your petition moves from one desk to another - till a decision is reached. But it is not a defined immigrant category.

[sachinky 465]

Bob--Mox doesn't wish to discuss B-2s. The fiancees (now married to USCs) are special and the tourists (also married to USCs) are not. Something about apples and oranges.

Edited February 24, 2010 by sachinky

[mox 298]

Pegs and holes you insensitive clod, pegs and holes!

[HeatDeath 430]

I imagine they could be detained, which is obviously why you want to file AOS within the 30 days, but actually deported? Unless there were other mitigating issues I'd be surprised if that actually did happen, though I would be interested in seeing real life examples to see what the circumstances may have been.

I'd wager that someone who is 3 months out of status because, say, the USC lost their job and they couldn't afford to file, is highly unlikely to actually be deported.

Imprecise and inconsistent implementation of the law is the norm, and thank G-d for that! The wording of the law says that every single person who does even 1 mile per hour over the speed limit in in violation of the law and ticketable every single instant they spend in that state. The daily practice of the vast majority of highway and traffic police is to ignore excesses of less than 5-10 miles per hour. This practice is in open contradiction to the posted law.

We should hardly be surprised to see similarly inconsistent enforcement in other areas of law. Indeed, if all laws could be enforced perfectly, we would find ourselves in a short lived hell. Short lived because such naked aggression on the part of the government would forment first mass civil disobedience, and then armed rebellion.

The law is not a computer program. It makes no pretense to completeness, and only vague overtures to overall consistency. At best, it defines rough boundaries around the regions of "what you can get away with", and how that relates to "what the government can get away with." Most of the time, you can "get away with" doing 15-20 miles over the limit. However you should be aware that doing so allows the government to "get away with" pulling you over, extorting money from you (aka ticketing you), running your plates and records, letting the drug dogs get a crack at your trunk and person, etc. The precise severity of the response, indeed, if there is any response at all, is totally within the traffic officer's discretion.

Similarly, most of the time, you can "get away with" delaying your AOS significantly, or adjusting status from a nonimmigrant visa. However you should be aware that doing so enables the government to "get away with" denying your application, or beginning removal proceedings. Whether the government responds in this way depends largely on how many government officers you manage to tick off by other means

The law defines rough boundaries around permissible behavior. While it mandates specific government responses, these responses are never implemented mechanically and without officer discretion. Tyranny, in fact, can be reasonably defined as the degree to which officer discretion is removed from government response - the degree to which the law is imposed perfectly, consistently, and universally.

It is generally advisable to behave in such a way as to most tightly limit, by law, what the government can "get away with." Which is why delaying your AOS unduly, or adjusting from nonimmigrant (by which I also mean non-K-1) visas remains inadvisable. Even if the daily practice of USCIS renders these actions possible, they continue to violate the strict wording of the law, and therefore unduly free the government's possible range of untoward responses.

Edited February 24, 2010 by HeatDeath

[klicristina 0]

This must be the most interesting discussion since I joined VJ.

Whether a B2 visa holder marries a USC during their I-94's validity, or a K-1 visa holder does the same seems to achieve the same outcome: both are married to a USC while having entered the US legally.

[Nik+Heather 121]

This must be the most interesting discussion since I joined VJ.

Yeah, I thought it might be....

[Bobby+Umit 161]

One way to look at it is this:

The visa (whatever one you have) gets you to the door (At the POE) - doesn't mean you get let in all the time - you still have the next step;

CBP allows you access to the US (Via the I-94) which grants you "authorized stay" (AS)

If you stay beyond that AS date - your getting bad days (out of status) added to you.

If ICE/CBP gets you beyond this AS date - your going to have a bad day.

If you leave the US after this AS date, and went pass 180+ days, your going to have a bad day upon re-entry to the US, since any ban would trigger then.

If you get married to an USC, prior to leaving the US, your golden, and can AOS, regardless if you have "out of status days" (you will never trigger the ban because you never left the US, if applicable)(tack on - I will take it there are no other adverse factors that would prevent the AOS - like misrepresentation)

If you have 180+ out of status days, and you AOS, and you get the AP, and leave, your going to have a bad day getting back in to the US using the AP. Even married to an USC.

Once you get the Greencard - out of status days mean nothing and your clock starts ticking for USC. (which is what most people want to get)

So - don't be that "guy/girl" that has a bad day - don't delay, AOS ASAP!

_____

Let's take it a step further. The same former K-1 marries again after her divorce, the files for AOS. Wouldn't work, because the requirement of the K-1 is that she marries the petitioning USC, right? But she did! Then she divorced him. Years later she married. If she was legal all these years, just hasn't filed for AOS, why would an AOS now being denied (and it will be denied)?

Interesting scenario - Looks like she would have a bad day.

[mox 298]

I'm gonna say something insanely controversial here, but I think it really needs to be said:

Everybody who comes to the US on a K1 visa should adjust status as soon as humanly possible. Adjusting status is a good thing. Not adjusting status is a bad thing. Adjusting status allows you to do interesting things like work, leave the country and return, obtain citizenship, carry around a really cool sorta-kinda green holographicy ID card, etc.

Now go easy on me people, I know it's a concept that's going to take awhile to come to terms with, especially since it's been said in EVERY SINGLE EFFING POST UP TO THIS ONE, but there's probably one poor sod out there who thinks filing AOS might be a bad thing, so please, let's keep repeating this mantra over and over, because 5 pages of "filing AOS is a good thing" just isn't enough.

I really need to stop drinking at work.