AOS before or after I-94 expires

[SunDrop 59]

can the government kick your fiance out if it's past the 3 month time frame from when the foreign fiance entered the States?

No, they can't. As long as you have gotten married within 90 days, filed your AOS before your I-94 expires and respond to any RFEs within the time given to respond. Make sure that you get proof of deliveries, ideally signed for, for anything you send, in case they do say it was never received.

From what I've read, a lot of these RFEs are coming about because of the outsourcing of the application package receipt and checking. Because K1s are such a small number of AOS applications received, and most non-K1s have had their medicals done in the US, they are throwing out RFEs like St. Paddy's Day Parade confetti. I think - but I'm not 100% - that K1s are in fact the only visa that requires you to have your medical, hand it over at POE and then file your AOS.

Speak to Nik+Heather, she's championing these wrong RFEs and I think would say that getting her Congressman involved was definitely beneficial.

Edited February 23, 2010 by SunDrop

[beatlesrebel 0]

No, they can't. As long as you have gotten married within 90 days, filed your AOS before your I-94 expires and respond to any RFEs within the time given to respond. Make sure that you get proof of deliveries, ideally signed for, for anything you send, in case they do say it was never received.

From what I've read, a lot of these RFEs are coming about because of the outsourcing of the application package receipt and checking. Because K1s are such a small number of AOS applications received, and most non-K1s have had their medicals done in the US, they are throwing out RFEs like St. Paddy's Day Parade confetti. I think - but I'm not 100% - that K1s are in fact the only visa that requires you to have your medical, hand it over at POE and then file your AOS.

Speak to Nik+Heather, she's championing these wrong RFEs and I think would say that getting her Congressman involved was definitely beneficial.

Okay I didn't think the fiance could be kicked out as long as things were done, but I wasn't 100% sure. I wonder if it would be a good idea to contact our Congressman now, explain the situation, and ask if he would be willing to help us if we need the help. Would that seem too much like jumping the gun? I just don't want the possibility of getting an RFE and having only a limited time to try and get ahold of our Congressman. Thanks for the info as always, Sundrop!

[mox 298]

No, they can't. As long as you have gotten married within 90 days, filed your AOS before your I-94 expires and respond to any RFEs within the time given to respond. Make sure that you get proof of deliveries, ideally signed for, for anything you send, in case they do say it was never received.

*sigh*

You couldn't be more wrong. Well, yes you could. You could say something like "you must be married and submit proof of having had consensual relations with a Massey-Ferguson 8670 250HP 4WD tractor, notarized via certified mail in a create," and that would definitely have been "more wrong," but I'm just gonna go with "you couldn't be more wrong" anyway because it's so very very very wrong.

Anyway.

- You do NOT have to file AOS before your I-94 expires. The expiration on your I-94 is the date that you are required to be married by. It has zero to do with AOS. You could file AOS 20 years after the I-94 expires if you wanted to, and not a single USCIS person is going to use the word "I-94" in the ensuing discussion, unless it's something like "so did you have any problems with the traffic on I-94?"

- A K1 entrant does not even have to file AOS...ever. EVER. Having said that, not filing AOS would be pretty inadvisable, as the immigrant would not be eligible to work, get a drivers license in many states, obtain citizenship, and a whole slew of other benefits. But technically there is no requirement to adjust status for a K1 immigrant.

The problem with absorbing vast amounts of information over a very short period of time, filtering that information through your own head, and then handing out your own understanding as if each one was nougat-covered factual confection , is that you haven't taken the time to digest the information and really understanding how it all works. You've barely even filed and you're handing out advice on AOS?

By all means, keep reading, keep asking questions, and keep offering moral support. But please stop handing out information as if you're an expert, or at least stop screwing with other peoples cases until you've gone through the process yourself and understand the nuances. Sorry (but not really) to come down like a ton of bricks on this, but people who hand out immigration advice because they're excited about the process and have digested tons of information so now consider themselves experts are the worst sort. Learn, read, and ask questions before you fancy yourself the expert.

[Nik+Heather 121]

Actually, if someone is interested in protecting their status, and never want to be OUT of status, then they will file AOS before their I-94 expires. When talking to people who still have control over things and can plan accordingly, I don't see that any advise OTHER than "file AOS before I-94 expiry" is responsible.

Back to the original question, I wouldn't worry about RFEs from an "Oh no, we won't have time to answer" perspective. They give you nearly 3 months to respond to an RFE. Given that our rep got back to us in a week, that's ample time. Worst case, if they haven't responded by the time you get to the two month mark, you can start looking for a CS and make an appointment. There will be LOTS of time before deportation (don't worry, you're not likely to get THAT far!). First there's the RFE, and that takes 3 months. If, somehow, you don't answer that, you get a denial letter, and that process can go on for at least another month if not more. Once you respond, the clock starts all over again.

Edited February 23, 2010 by Nik+Heather

[StillThePrettiest 3]

I think the point is that 'responsible' and 'legal requirement' are two entirely different matters

[Ovaltine Jenkins 5]

As long as you have gotten married within 90 days, filed your AOS before your I-94 expires

NOT true.

[mox 298]

Actually, if someone is interested in protecting their status, and never want to be OUT of status, then they will file AOS before their I-94 expires. When talking to people who still have control over things and can plan accordingly, I don't see that any advise OTHER than "file AOS before I-94 expiry" is responsible.

Again, the I-94 has NOTHING to do with AOS. NOTHING. The expiration date on the I-94 is the deadline to be married or leave the country, nothing else. Filing AOS the day before your I-94 expires is no different than filing the day after it expires. It *IS* irresponsible to advise people to file AOS before the I-94 expires because with regards to AOS, the I-94 expiration is a completely arbitrary date. Of course filing AOS at the earliest convenience is the most *advisable* course of action, but if you're going to advise doing it before the I-94 expires, then you might as well advise to file before the next full moon, because both dates have the same impact on filing AOS--nothing at all.

[SunDrop 59]

*sigh*

- A K1 entrant does not even have to file AOS...ever. EVER. Having said that, not filing AOS would be pretty inadvisable, as the immigrant would not be eligible to work, get a drivers license in many states, obtain citizenship, and a whole slew of other benefits. But technically there is no requirement to adjust status for a K1 immigrant.

The question wasn't "What happens if I don't file AOS?" It also wasn't "Do we have to file AOS?" It was "Can they kick the beneficiary out?" This suggests that Beatlesrebel would like to avoid any complications arising and it is on that basis that I answered the way I did.

If you're going correct something someone's posted, why not actually provide full information? I didn't say that you HAVE to file. I said that if you want to ensure that your status is protected and you don't have any issues, these are the steps you have to take.

Here are some posts that touch upon the issue of filing vs. not filing before the I-94 expiry:

To quote Bernie C's post: "The only way to protect your legal status is to apply for Adjustment of Status, and the only way to maintain continuous legal status is to file for AOS before the K1 visa expires."

Or let's look at Anh Map's statement in this post: "However she is currently out of status and that could potentially be a problem. There are many threads here on VJ about this subject. Get the AOS filed as soon as you can. This protects her status here in the US."

which is followed by Nik+Heather's post, in the same thread: "being out of status DOES put your wife at risk in other aspects. Should she come into contact with law enforcement she could be "detained" and have quite an unpleasant time (from hours to DAYS) while things get sorted out.

And finally, to wrap it up, let's quote Bobby+Umit from this post:

"Best advice, do your AOS before you go out of status - doing anything else is at your own peril."

Mox, I can read. I've been on this forum for years. Granted mostly silently until now. You have NO idea of whether or not this is a process I've been through before. Unlike an enormous amount of posters here, I search, research, read, read some more, research again using other immigration sources (e.g. forums and official documents). If I'm not 100% about something, I say so, and I ask for experienced posters to comment. If there's something that comes to mind as a possibility, I throw it out there with the caveat that I am not very knowledgeable about xyz but is such and such a consideration.

*sigh*

[SunDrop 59]

It should also be noted that Arizona is a state with a large illegal immigrant population. Granted, Phoenix is not particularly close to the border and Mr. Beatlesrebel doesn't much look like someone who is going to stopped and questioned. But all it could take is for him to be pulled on a traffic stop and some ignorant cop to go "hey, your I-94 has expired, I don't know diddly squat about K1s so I'm going to take you in, and throw you in detention for however long it takes for us to figure it all out."

I think the point is that 'responsible' and 'legal requirement' are two entirely different matters

Thank you, exactly my point.

[mox 298]

I didn't say that you HAVE to file. I said that if you want to ensure that your status is protected and you don't have any issues, these are the steps you have to take.

You said:

As long as you have gotten married within 90 days, filed your AOS before your I-94 expires

This. Is. Wrong.

Mox, I can read. I've been on this forum for years. Granted mostly silently until now. You have NO idea of whether or not this is a process I've been through before. Unlike an enormous amount of posters here, I search, research, read, read some more, research again using other immigration sources (e.g. forums and official documents). If I'm not 100% about something, I say so, and I ask for experienced posters to comment. If there's something that comes to mind as a possibility, I throw it out there with the caveat that I am not very knowledgeable about xyz but is such and such a consideration.

Being a "member for years" means nothing. What you say means everything. I see you constantly handing out poor or misleading advice, so if you really do "search, research, read, read some more, research again using other immigration sources," then you aren't very good at it. And hey, there's nothing wrong with not being good at it, especially if you haven't actually been through the process and really don't understand it like you think you do. Just please stop trying to make people think you're good at it, until you actually are.

[StillThePrettiest 3]

Thank you, exactly my point.

then I misspoke, as I was agreeing with Mox, and disagreeing with you

[SunDrop 59]

I see you constantly handing out poor or misleading advice ... Just please stop trying to make people think you're good at it, until you actually are.

I'm pretty sure I've said to you before, I have no issues with standing corrected when necessary. All it takes is a PM or a post in the thread that factually disproves what I've written, without degenerating in to a patronising "You're wrong, wth can you possibly know?" stab.

So, are you really stating that someone who doesn't file their AOS before their I-94 expires faces absolutely no risk of encountering any issues with their status whatsoever? I'm not talking about legal/ procedural issues adjusting, I'm well aware that any 'overstays' are excused upon filing. I mean '100% certainty that the beneficiary is not going to have problems (albeit temporary) as a K-1 entrant, subsequently married but past their I-94 expiry date without having filed their AOS?

[mox 298]

I'm pretty sure I've said to you before, I have no issues with standing corrected when necessary. All it takes is a PM or a post in the thread that factually disproves what I've written, without degenerating in to a patronising "You're wrong, wth can you possibly know?" stab.

Correcting misleading information in a PM completely defeats the purpose of providing members with clear and accurate information. A pm lets you know that you're wrong, but it doesn't let anyone else know that the information you posted is wrong.

So, are you really stating that someone who doesn't file their AOS before their I-94 expires faces absolutely no risk of encountering any issues with their status whatsoever? I'm not talking about legal/ procedural issues adjusting, I'm well aware that any 'overstays' are excused upon filing. I mean '100% certainty that the beneficiary is not going to have problems (albeit temporary) as a K-1 entrant, subsequently married but past their I-94 expiry date without having filed their AOS?

I "stated" nothing of the sort. As StillThePrettiest says, you're confusing "'responsible' and 'legal requirement'". The responsible thing to do, for a variety of reasons, is to file AOS at the earliest possible time. The legality is that there's nothing illegal about not adjusting status.

Now if you're talking about a problem such as the immigrant coming across one of those (illegal in my opinion) checkpoints within the United States where they have poorly trained officers trying to weed out illegal immigrants, then yeah, she might have a problem that will eventually be sorted out. But as I made very clear, I am not advocating NOT adjusting status. I'm only clearing up the confusion you created by stating that there is a connection between the I-94 and AOS.

[SunDrop 59]

Correcting misleading information in a PM completely defeats the purpose of providing members with clear and accurate information. A pm lets you know that you're wrong, but it doesn't let anyone else know that the information you posted is wrong.

You're right, it doesn't. And having witnessed the confusion that ensues when a responder addresses a public thread with information given through PMs (case example being mcat and Gary and Alla recently) I don't normally advocate it. But what it does do is allow the poster to go back and either further explain what was meant, to clear up confusion. I sincerely mean that I don't profess to having all the answers all the time, frequently quite the opposite. But do you really need to be so patronizing and rude in your manner of going about it? I don't want 'rainbows and unicorns' but the mockery is uncalled for.

I "stated" nothing of the sort. As StillThePrettiest says, you're confusing "'responsible' and 'legal requirement'". The responsible thing to do, for a variety of reasons, is to file AOS at the earliest possible time. The legality is that there's nothing illegal about not adjusting status.

I know you didn't, that's why I asked what it was you were trying to say. We are approaching the question from different perspectives, each making assumptions about the motive behind the question.

Now if you're talking about a problem such as the immigrant coming across one of those (illegal in my opinion) checkpoints within the United States where they have poorly trained officers trying to weed out illegal immigrants, then yeah, she might have a problem that will eventually be sorted out.

And this is my point about Arizona. Her fiance is far more likely to encounter one of these than if Beatlesrebel was living up in the Lakes district of New Hampshire. I've travelled to and from the US, on a VWP for 16 years, to at least 9 different states. The only place I've ever come across these kinds of checks is in Arizona, on several occasions, over the course of the past 2 years. Granted, I've been travelling around the more southern part of the state, but who the hell wants to run the risk of being carted off in a meat wagon, handcuffed and thrown in a detention center with the threat of deportation looming over their heads? Even knowing they wouldn't be deported, it would be a pretty vile experience, and easily avoided!

But as I made very clear, I am not advocating NOT adjusting status. I'm only clearing up the confusion you created by stating that there is a connection between the I-94 and AOS.

This is where I don't understand what you mean. If you enter the country on a K-1, your visa is void upon entry. When you enter the country you are issued an I-94 with 90 days on it. This is given because the K-1 requirements stipulate that you have to get married within those 90 days. We are in agreement, I'm sure, that if you don't get married within said 90 days, your continued presence is illegal. But assuming you do get married within 90 days, and assuming you file your AOS within those ninety days, your status then changes from K-1 entrant to one of pending LPR. In effect, there is no difference once your AOS has been filed between you, the K-1 entrant and he, the F-1 adjuster (for example)?

However, if you are a K-1 entrant, married within 90 days and not a pending LPR since you haven't filed your AOS before your I-94 expires, what are you, if not 'out of status'? The (unexpired) F-1 adjuster is still legally present, but you're effectively in a no-man's land. Whilst being 'out of status' is not grounds for deportation, since you can't abandon something that hasn't been filed, why is there no connection between the I-94 and the AOS in terms of ensuring that you status remains current?

In short, I completely appreciate that you are not liable to deportation if you pass your I-94 expiry date without filing. And if this is the way what I wrote came across, then apologies. What I should have clarified is that the only way of ensuring that you do not have your status ever called to question is by filing before your I-94 expires.

I'm not trying to pick holes in your argument, nor bones with you, Mox. I just don't understand, if it's such a non-issue, why the repeated advice all over the forum from seasoned filers is 'just avoid going 'out of status' and file before your I-94 expires.'

[Ovaltine Jenkins 5]

then I misspoke, as I was agreeing with Mox, and disagreeing with you