AOS before or after I-94 expires

[Rebecca Jo 1,962]

See what I mean about scrutiny? You called me out for using 'admin'. Yep, I meant organizer. My bad!

But, yes, I have to agree with you. This board is pretty much a free for all and unfortunately often the first and only place people come seeking advice. We have lost a lot of good knowledgeable people over the years, probably to the other boards you are talking about. I am mostly bugged by the judgemental stuff, you know judgement on a personal level rather than criticisms made for the common good of the 'community'.

It is good though to hash out ideas and policy with people who are willing to look at things in detail. There are a lot of grey areas and it is useful to discuss these with people whether you reach an agreement or not. So I am happy to entertain your drivel, if that's what you want to call it.

I'm used to doing the scrutiny. It's unfortunately important in these discussions. Hence it should 'neer be personal.

[Rebecca Jo 1,962]

So I'm one of those whatchacall pinko commie Obama-lovin' freedom-hating libtards. I'd love for nothing more than to kick me some ####### Cheney nads right up into his pooper. But if said needs-a-good-nad-kicking-into-his-pooper-ex-Veep were to tell me something that was factually correct, then there's really no need for him to change me into a right-wing nutjob in order for me to accept it, because it's fact, not opinion. As some probably dead white dude once said, you can have your own opinions but you can't have your own facts. I appreciate that I probably lose people through my adorable abrasiveness, but if I'm right then I'm right, and I shouldn't have to sway your opinion through civility or anything else.

Regarding the lack of citation, I actually did provide the relevant section of the CFR where it *would* be if it was spelled out. It goes back to what I was saying in an earlier post: prove to me that it's lawful to walk and chew bubblegum. You can't do it, other than to cite every single law on the books that doesn't say you can't walk and chew bubblegum. Because there's no law on the books that implicitly says you're allowed to walk and chew bubblegum.

If there were a requirement to file AOS, then the CFR's I cited would say it. But they don't. That's really as close to being able to cite a source as anybody is going to be able to come. So if I lose you through abrasiveness or whatever, then ok, but I've come as close to proving the point as anybody's going to, so, you know, there's that.

Can we draw a line under this? Please?

There's no place in the CFR where it is written that a K1 must adjust status before their I94 expires. Fact.

There's no place in the CFR where it is written that someone adjusting their status by the vehicle of marriage to a US citizen won't be forgiven for out of status time. In fact, the CFR states they will be 'forgiven'. Fact. *Except dear God how I hate that word 'forgiven' because it really isn't in the CFR*

There's no place in the CFR that defines the status of alien who is present in the US beyond the duration of their I94 and who also has not filed to adjust their status as anything other than out of status. Fact.

And there's probably no place like home either, but no matter how hard I click the heels of my red tennis shoes together, I can't get to Kansas.

[bakofoil 27]

Regarding the lack of citation, I actually did provide the relevant section of the CFR where it *would* be if it was spelled out. It goes back to what I was saying in an earlier post: prove to me that it's lawful to walk and chew bubblegum. You can't do it, other than to cite every single law on the books that doesn't say you can't walk and chew bubblegum. Because there's no law on the books that implicitly says you're allowed to walk and chew bubblegum.

If there were a requirement to file AOS, then the CFR's I cited would say it. But they don't. That's really as close to being able to cite a source as anybody is going to be able to come. So if I lose you through abrasiveness or whatever, then ok, but I've come as close to proving the point as anybody's going to, so, you know, there's that.

Actually, lack of specificity in law, where absolutes are not mentioned, is important and I also pointed out that there were no time limits mentioned in the requirements for AOS from K1, other than marriage with 90 days, within the instructions for the I-485. Any citation about time constraints on AOS are reserved solely for those in the position of having actually left the country and having to file a waiver.

This aside, perhaps one of the most informative posts in this thread got lost in the noise and so I'll post it again. Here the author states explanations they were given on K1/AOS protocol from an embassy official, a CBP officer and advice given to them by the USCIS. It was looked over completely by those 'armchair' experts so avidly seeking specific citation to this.

Uhmn... I was kind of afraid to post here but hopefully what I post will be of some use/value:

This is something that my then-fiance (now husband) was told when he went to the U.S. Embassy in Manila: The K-1 is a hybrid visa. It's a Nonimmigrant visa processed by the Immigrant Visa Unit due to the fact that it allows the beneficiary to immigrate and become a Legal Permanent Resident.

This is what the CBP officer who examined my K-1 visa packet / documents at POE (Detroit, MI) said regarding the K-1 visa and fulfilling its requirement of marrying the U.S. Citizen who petitioned you: He asked for my I-94, stamped it and wrote down the 90-day deadline on the "valid until" space on the I-94. He said "Congratulations" and reminded me that we MUST get married before the date on the I-94 or I would have to return to my home country. After that he told me that we'll have to file for Adjustment of Status. He added that, "Well, technically you don't have to file because the only requirement is that you get married but then you'll be out of status. I'm sure your fiance wouldn't want that to happen though." I clearly remember him using the word "technically" - it is a technicality because nowhere does it say on the I-129F instructions, embassy letter, K-1 visa, etc. that you have to file for AOS after entering the U.S. on a K-1 visa and marrying your petitioner.

My husband and I tried to do our best to file before my I-94 expired because when we called the USCIS NCSC, they told us that "there isn't an actual deadline for filing for AOS but it is advisable to file before the I-94 expired because you would be out of status" (like the CBP officer said). We explained that we couldn't file before the I-94 expiry because the closest Civil Surgeon's earliest available appointment date was beyond the I-94 expiry date (the CS was 80 miles away and the other ones further away had even later available appointment dates). We ended up filing 3 months after my I-94 expired due to unexpected circumstances (car accident, other car acting up then eventually breaking down, garage door broken, etc.). They just told us to file as soon as possible and to keep all notices received from the USCIS because the notice is proof that I can legally stay in the U.S. because I have an application pending with the USCIS. They also told us not to leave the U.S. until the application was approved.

So...just wanted to share. These are all information from the embassy, CBP and USCIS.

[VanessaTony 3,567]

....He added that, "Well, technically you don't have to file because the only requirement is that you get married but then you'll be out of status. I'm sure your fiance wouldn't want that to happen though." I clearly remember him using the word "technically" - it is a technicality because nowhere does it say on the I-129F instructions, embassy letter, K-1 visa, etc. that you have to file for AOS after entering the U.S. on a K-1 visa and marrying your petitioner.

Actually it DOES mention that you MUST "file for AOS after entering the U.S. on a K-1 visa and marrying your petitioner" in SEVERAL places:

Here:

- http://www.uscis.gov/files/form/i-129finstr.pdf page 6 ".. Your alien spouse should then apply promptly to USCIS for adjustment of status to conditional permanent resident, using Form I-485, Application to Register or Adjust Status"

- It's also mentioned on the approval letter given when your K1 is approved at the interview (i'd have to scan it to show you, but it's definitely mentioned there)

- K1 visa you're right, it's NOT mentioned because it's a small piece of paper...

- Travel state website: http://travel.state.gov/visa/immigrants/ty...types_2994.html specifically here: "What Must Happen After Getting the Fiancé(e) Visa?

After getting the fiancé(e) visa, your fiancé(e) enters the U.S. through a U.S immigration port-of-entry. The U.S. immigration official gives your fiancé(e) instructions on what to do when he/she enters the United States. You must get married within 90 days of your fiancé(e)’s entry into the United States.

After marriage, your spouse must file Form I-485 Application to Register Permanent Residence or to Adjust Status with the USCIS office that serves the area where you live in the United States. You must fill out the Affidavit of Support, Form I-864, with the USCIS for your spouse's application to become a lawful permanent resident (LPR). See Permanent Resident at the Department of Homeland Security's, USCIS internet site. "

So... yeah. There's ISN'T a specified timeframe, but it is mentioned that it MUST be done. I think the interesting part here being if you're never detained you're all well and good but can't work or drive (legally). If you are detained you won't be deported but they will force you to complete AOS immediately. You don't HAVE to apply for AOS, you can also get out of the country, but if you want to be a regular legal resident of the US (which is the whole point of the K1 visa) then AOS IS required... I think that's the whole point of the term "must". I'm also semi-confident that even if you marry another USC other than your petitioner (after the 90 days or whatever) the typical waivers won't be permitted. You WILL need to leave. You're better of AOSing (well marrying your USC) so that at least you followed the K1 rules and don't screw yourself later. Can you divorce your USC that petitioned you and them marry another and AOS? I doubt it but until it happens we can't be sure whether the AOS MUST be applied for before the K1 "marry the petitioner and ONLY the petitioner" is deactivated...

Edited February 26, 2010 by Vanessa&Tony

[bakofoil 27]

well, as I said before, no one here is advocating not adjusting status. You really MUST do it in order to enjoy the benefits of freedom to work, travel abroad, not be detained etc. In no way is anyone arguing against you on that point or on the expectation of a K1 visa holder to submit an AOS application. The issue here was the relative benefits of applying before or after your I-94 expires. Or more precisely the risk to the beneficiary of not applying for AOS before the I-94 expires.

The fact is that applying before the I-94 expires gives the beneficiary a favourable position in many ways; they will not find themselves 'out of status' and may even obtain AP fairly soon after the I-94 expires which is probably a major benefit to those who are worried about border authorities. However, for those of us that have been through AOS, you'll know that 90 days isn't a very long time in terms of all the stuff that happens, stuff you plan for, stuff you don't. I'm just one of those people who feel that people shouldn't be berated for what isn't actually a lack of planning on their part but often a situation they can't avoid.

The pertinent part of Fatima and Jim's post is that life got in the way somewhat, but they still found themselves applying within an acceptable timeframe as far as USCIS were concerned. I'm sure they, like all of us, would have planned to cough up the paperwork and the pennies long before they actually did, but the point is they couldn't and it was fine. For that reason alone, their post was extremely valuable to this community. They also provided some anecdotal evidence from the authorities in question which is always useful to know especially in the absence of a definitive answer.

You were looking for specific citation on this but the point I was trying to make is that it appears that there is no specific citation on whether it's ok or not to apply later than the I-94 expiry. Believe me, people have been trying very hard to find an answer to this. Even the CBP officer in Fatima and Jim's story didn't believe there was technically a requirement to adjust status at all, but it would be crazy not to. Anyway, whether AOS is a legal requirement or not has become a moot point, because ALL of us agree it's the only sensible course of action. It's somewhat self-defeating if you can't afford to file to not file but sometimes people have to make other things a priority for a short while.

In terms of the topic title though, until the I-485 or any other relevant legal document states that the adjustment of status application MUST be submitted before the I-94 expires then USCIS will not disallow 'late' applications. And they don't.

Interestingly, I read today that timeframes may soon become very specific if you are adjusting from the VWP, but that's a whole other topic.

[mox 298]

Actually it DOES mention that you MUST "file for AOS after entering the U.S. on a K-1 visa and marrying your petitioner" in SEVERAL places:

It actually doesn't...

Here:

- http://www.uscis.gov/files/form/i-129finstr.pdf page 6 ".. Your alien spouse should then apply promptly to USCIS for adjustment of status to conditional permanent resident, using Form I-485, Application to Register or Adjust Status"

"Should," not "must."

- Travel state website: http://travel.state.gov/visa/immigrants/ty...types_2994.html specifically here: "What Must Happen After Getting the Fiancé(e) Visa?

After getting the fiancé(e) visa, your fiancé(e) enters the U.S. through a U.S immigration port-of-entry. The U.S. immigration official gives your fiancé(e) instructions on what to do when he/she enters the United States. You must get married within 90 days of your fiancé(e)’s entry into the United States.

After marriage, your spouse must file Form I-485 Application to Register Permanent Residence or to Adjust Status with the USCIS office that serves the area where you live in the United States. You must fill out the Affidavit of Support, Form I-864, with the USCIS for your spouse's application to become a lawful permanent resident (LPR). See Permanent Resident at the Department of Homeland Security's, USCIS internet site. "

The travel website is non-authoritative, but even it doesn't say you MUST file AOS. It says you must file form I-485 to register for AOS. Which is true, you have to file that form if you want to register AOS.

[mox 298]

Just wanted to add that the more "evidence" that's been posted to try to build the case that AOS is required for K1 recipients, the more I'm starting to realize what great pains the government goes to in order to avoid actually saying that AOS is a requirement. They use terms like "should file AOS" and "may file AOS," but never "must file AOS." Once again, the point isn't whether it's a good idea to file AOS (yes of course it is), but whether it's a requirement.

I'm also semi-confident that even if you marry another USC other than your petitioner (after the 90 days or whatever) the typical waivers won't be permitted. You WILL need to leave.

This really isn't germane to the discussion, and I don't think you'll find anyone disagreeing, being that it's very clearly defined, and the K1 recipient is reminded of this fact both at their interview and at POE. So I'm not sure why it needs to be mentioned.

You're better of AOSing (well marrying your USC) so that at least you followed the K1 rules and don't screw yourself later. Can you divorce your USC that petitioned you and them marry another and AOS? I doubt it but until it happens we can't be sure whether the AOS MUST be applied for before the K1 "marry the petitioner and ONLY the petitioner" is deactivated...

In the context of the discussion at hand, this makes absolutely no sense.

[Rebecca Jo 1,962]

Mox -

Your white horse has turned itself belly-up and is now quite dead.

[F & J 21]

- It's also mentioned on the approval letter given when your K1 is approved at the interview (i'd have to scan it to show you, but it's definitely mentioned there)

Just a note: I wasn't given an "approval letter" during my K-1 interview - just a pink slip for the visa delivery fee

As for the I-129F instructions, sorry I believe I do remember reading that part about how the visa beneficiary should apply for AOS. ^__^;;

Edited February 26, 2010 by Fatima and Jim

[mox 298]

Mox -

Your white horse has turned itself belly-up and is now quite dead.

JQ, meet my zombie horse army. Zombie horse army, meet JQ.

[Elghazi2008 4]

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 grabbed the pieces of your last very long e-mail to respond to. I don't send PMs on this type of thing because it's educational for everybody to read discussions/conflicts like this, so I hope you do not feel offended that I've chosen to post this as a public response.

I'm not really sure why you're mentioning an F-1 visa (as this is a student visa) when the discussion is over K-1 visas...maybe I'm not reading carefully or perhaps you simply misstyped...but nonetheless... When a K-1 nonimmigrant enters the US, he/she is a K-1 visa holder. That is his/her status. The moment he/she marries a USC, he/she becomes the Spouse of a USC. That is the new status. A K-1 visa holder can not really be "out of status" unless he/she does not marry a USC within the allotted 90 days.

If you entered the US on a K-1 visa and you were married within 90 days to a USC, your status can not really be called to question because as long as you married a USC within those 90 days, you are under no further obligations than to remain actively involved in that marriage. To my knowledge, the only importance of an I-94 in a K-1 visa holder's immigration process is to show proof of legal presence in the US during the period of those first 90 days in which the visa holder is not married to the USC.

[SunDrop 59]

I grabbed the pieces of your last very long e-mail to respond to. I don't send PMs on this type of thing because it's educational for everybody to read discussions/conflicts like this, so I hope you do not feel offended that I've chosen to post this as a public response.

Nope, not offended in the slightest I actually firmly believe in these discussions being kept out in the open, as it's a fantastic tool for learning. This isn't a debate that I take personally, except where personal things have been said.

I'm not really sure why you're mentioning an F-1 visa (as this is a student visa) when the discussion is over K-1 visas...maybe I'm not reading carefully or perhaps you simply misstyped...but nonetheless... When a K-1 nonimmigrant enters the US, he/she is a K-1 visa holder. That is his/her status. The moment he/she marries a USC, he/she becomes the Spouse of a USC. That is the new status. A K-1 visa holder can not really be "out of status" unless he/she does not marry a USC within the allotted 90 days.

I was using the F-1 quite simply as an example of another type of visa that has to file AOS if they wish to benefit in becoming an LPR through marriage. I could have used any number of other visa categories, but the F-1 is possibly one of the more common visa categories that people are legally present in the US without a right to permanent residency, and again, possibly a more common visas that people adjust from.

I think that there is plenty of evidence to the contrary about what happens to the visa status when a K-1 enters the country. Since it's a single entry visa, to the best of my understanding, it becomes void once used. This is different from a K3 (although this is now becoming obsolete) which was, if I remember correctly, a multiple entry visa for a set period of time.

From lengthy discussions across multiple threads, my understanding is that a K-1's permitted presence in the US in order to satisfy the purpose of the visa upon which they entered is determined only by the period of time given on their I-94.

Your marriage does not determine your status, in my opinion. I can enter the US tomorrow on a VWP or a B-2 and get married. But if I do not file an AOS, then I am still required to leave by the expiry date on my I-94, or be classed as having overstayed. And this ties in with my example of an F-1, since had I entered on an F-1, irrespective of whether I met and married a USC, I would not need to adjust in order to continue with a legal presence in the country.

If you entered the US on a K-1 visa and you were married within 90 days to a USC, your status can not really be called to question because as long as you married a USC within those 90 days, you are under no further obligations than to remain actively involved in that marriage. To my knowledge, the only importance of an I-94 in a K-1 visa holder's immigration process is to show proof of legal presence in the US during the period of those first 90 days in which the visa holder is not married to the USC.

I have to absolutely disagree with the requirement to remain actively involved in that marriage! Again, to the best of my knowledge, A K-1 visa entrant cannot adjust by themselves (with the possible exception of abused alien spouses? I'd have to look this up). Without that AOS, a K-1 entrant would not be allowed to work, not allowed to travel, not be eligible for any form of public assistance and wouldn't even be sponsored, since the I-134 is not technically legally binding. What the heck are they doing in the US therefore, if not existing on thin air...

However, this was the exact premise of the entire debate. Can an K-1 technically ever be 'out of status' if they do not file their AOS. There seems to be anecdotal evidence that says yes, they can be considered out of status. If there were a legal parameter for a K-1's status as being ongoing by virtue only of their marriage to their petitioning USC, then all this would have been wrapped up very quickly! lol..

And this is why I described the K-1 entrant, post marriage but before filing AOS as being a "no man's land". No law that says you must, no law that says what happens if you never...

On an aside, I absolutely agree with mox (I know... shock horror! lol) that it seems that there is almost a conscious effort in remaining obscure about the K-1s status.

That, and I'm jealous of his zombie horse army... we likes zombies!

[Elghazi2008 4]

Nope, not offended in the slightest I actually firmly believe in these discussions being kept out in the open, as it's a fantastic tool for learning. This isn't a debate that I take personally, except where personal things have been said.

I was using the F-1 quite simply as an example of another type of visa that has to file AOS if they wish to benefit in becoming an LPR through marriage. I could have used any number of other visa categories, but the F-1 is possibly one of the more common visa categories that people are legally present in the US without a right to permanent residency, and again, possibly a more common visas that people adjust from.

I think that there is plenty of evidence to the contrary about what happens to the visa status when a K-1 enters the country. Since it's a single entry visa, to the best of my understanding, it becomes void once used. This is different from a K3 (although this is now becoming obsolete) which was, if I remember correctly, a multiple entry visa for a set period of time.

From lengthy discussions across multiple threads, my understanding is that a K-1's permitted presence in the US in order to satisfy the purpose of the visa upon which they entered is determined only by the period of time given on their I-94.

Your marriage does not determine your status, in my opinion. I can enter the US tomorrow on a VWP or a B-2 and get married. But if I do not file an AOS, then I am still required to leave by the expiry date on my I-94, or be classed as having overstayed. And this ties in with my example of an F-1, since had I entered on an F-1, irrespective of whether I met and married a USC, I would not need to adjust in order to continue with a legal presence in the country.

I have to absolutely disagree with the requirement to remain actively involved in that marriage! Again, to the best of my knowledge, A K-1 visa entrant cannot adjust by themselves (with the possible exception of abused alien spouses? I'd have to look this up). Without that AOS, a K-1 entrant would not be allowed to work, not allowed to travel, not be eligible for any form of public assistance and wouldn't even be sponsored, since the I-134 is not technically legally binding. What the heck are they doing in the US therefore, if not existing on thin air...

I agree that simply marrying a USC does not give you the right to be in the US, such understanding being one that has gotten so many in trouble. However, when you actually file marriage-based paperwork and you arrive in the US and fulfill your responsibilities as a K-1 visaholder, you are all set. Granted, you have absolutely no rights (all the more reason for you to file your AOS asap!!!), but you can not be kicked out of the US unless you are found to be committing illegal acts or found to have sumbitted false information, etc.

F-1s who get married to a USC get into trouble because after they get married, they do not file marriage-based paperwork. F-1s deal with the overstaying the moment their papers expire, K-1s do not unless they fail to complete their duty of marriage within 90 days allotted to them.

It is also my understanding that even after AOS is filed, the Permanent Resident is not eligible to obtain public assistance even then, nor is the sponsor... I thought that I had read that somewhere when starting this whole process. May I ask where I could find that information?

As far as the I-134 being legally binding.... I'm afraid to say that technically, any document that you affix your signature to, with the intent to verify that the document is correct, is legally binding.... There are a few exceptions for an attorney or other individual holding a legal position, but for the general public, a signature from a sane/responsible person pretty much does it I believe...

Edited March 1, 2010 by Elghazi2008

[Lisa and Ian 7]

K-1 is a non-immigrant visa. I don't agree that you are "all set" to remain in the US after fulfilling the requirements of the K-1 visa. The 129-F says that you "should file adjustment of status paperwork as soon as possible.."

Let's hear from someone who's come into the US on a K-1 and decided not to file AOS indefinitely. I want to hear their story about how the US recognizes they are allowed to remain.

[SunDrop 59]

It is also my understanding that even after AOS is filed, the Permanent Resident is not eligible to obtain public assistance even then, nor is the sponsor... I thought that I had read that somewhere when starting this whole process. May I ask where I could find that information?

As far as the I-134 being legally binding.... I'm afraid to say that technically, any document that you affix your signature to, with the intent to verify that the document is correct, is legally binding.... There are a few exceptions for an attorney or other individual holding a legal position, but for the general public, a signature from a sane/responsible person pretty much does it I believe...

I haven't read anything that says the sponsor is disqualified from public assistance. I'm not a lawyer but I would absolutely challenge this if I were the sponsoring USC fallen on hard times. Equally, what about situations where there is a co-sponsorship? The primary sponsor could well qualify for and receive public assistance, where the co-sponsor doesn't. Think of petitioners who are in receipt of disability allowance, or petitioners who qualify for medicare/ food stamps...

Any contract, namely a document that is legally binding, has terms that make it come into effect. My understanding of the I-134 is that it's a document created because the K-1 has a 'get out clause' of not having to AOS should you opt not to marry within the 90 days. CR-1/ IR-1s submit an I-864 because they have already entered into a contract of marriage. K-1s are required to file an I-864 for their AOS, since the I-134 acts more as a promisory note rather than a legally binding contract.

I suppose the technical question is, if a K-1 enters the US and somehow succeeds in benefitting from some form of public assistance prior to marriage and/or filing AOS, can the US Government pursue the sponsor/ co-sponsor on the basis of the I-134?