AOS before or after I-94 expires

[Usui Takumi 1,562]

If you are out of status, don't leave the state and keep your nose clean until you file AOS. Simple as that. For all the months that we were unable to file, I would never have DREAMED of leaving the state. I even renewed my car tags on time so as not to risk us getting pulled over.

Some of you people and your self-righteous posts REALLY piss me off. I hope you never lose your jobs prior to having to remove conditions or undergo some other filing process to keep your spouse current. You don't give a sh*t about scaring those who are out of status, because it makes you feel good to be RIGHT. Some of us had/have to spend our money (that would've gone to AOS) on bills and food. And if you even think about giving me that "if you can't afford it, don't do it" K-1 #######, save it. A lot of us lost our jobs after the fact (NOA-2, Visa issuance, POE). People who can't help their situations and are out of status don't need any more help feeling like sh*t. I've seen some of my VJ K-1 friends file their AOS before the I-94 expiry, and they now have green cards or interviews. You have no idea how hard that is to deal with.

You can give us all the stats, links, and deportation scare scenarios you like, but when you do it, try to remember that you are still actually talking to HUMAN BEINGS here.

If you've filed AOS, are filing before the I-94 expiry, filing Naturalization or have your random status situation sorted out, then just be happy knowing that you're awesome, and cut it out with these threads. They only stir the pot and make people feel worthless.

Yeah, I'd say if you can not afford it right now its not really a BIG deal. I'd just be very careful when traveling if you are in a border state. I myself filed a little late.

Edited February 24, 2010 by Sousuke

[bakofoil 27]

'border patrol' being the relevant variable here.

Plus, they can apply for AOS if they have not actually left the country and the 'out of status' period will, most likely, be forgiven by virtue of being married to a US citizen. The consequence of 'Removal proceedings' are going to be either insistance that the beneficiary files for AOS post haste or at worst, leaves the country and files for a marriage visa and forgiveness from USCIS for the overstay. Obviously the more 'out of status' days they accrue the harder it's going to be for them but basically it's just a hassle that could have been avoided by being sensible and filing AOS before attempting to go anywhere near border authorities.

The thread began as a discussion on time limits for filing AOS. There is NO requirement to adjust before the I-94 expires or within any fixed time period thereafter. If you attempt to pass through border authorities anytime after 90 days without advance parole or permanent residency then it's going to cause you problems, whether it's 90 days, 180 days or 3 years.

[StillThePrettiest 3]

Then why would CBP place someone in detention? I agree that I wouldn't label them as "illegal" that's more for a person that enters without inspection.

one reason could be - as Mox already said above - some people don't know their jobs, or the law

different scenario I know, but I had to fight for SIX MONTHS to get a citation for 'failure to obtain a Texas license in 30 days' thrown out - the cop who booked me had never HEARD of the law, which gave me 12 months driving on my valid, reciprocal foreign license, and didn't care when shown a printout from his own employer's website... didn't make him right, as the DA said when she dismissed it, but it didn't stop him doing it anyway

so yeah; file as soon as you can; it will make life easier, but you're not illegal if you don't, and don't let the scaremongers tell you otherwise

[Usui Takumi 1,562]

Hmm, well I still think CBP are correct for apprehending someone who is out of status (as they would anyone no matter what visa they entered on). Yes, I agree there is no written requirement for a K1 holder to file in 90 days but the way the rules are written there is obviously an inherent danger to being out of status and therefore it is always in the person's interest to file as as soon as possible. Assuming the person is staying home, there isn't much risk in not filing a few weeks or even a month or two late. I wouldn't want to go much pass that however, I'd try to make AOS my number one fiscal goal.

I certainly would never want to scare someone, but I'd say paying for AOS should be above say a big screen TV or something of that nature.

[English Muffin 59]

If you've filed AOS, are filing before the I-94 expiry, filing Naturalization or have your random status situation sorted out, then just be happy knowing that you're awesome, and cut it out with these threads. They only stir the pot and make people feel worthless.

There are people stirring the pot who don't even have their NOA2 yet!

[bakofoil 27]

I hope you never lose your jobs prior to having to remove conditions or undergo some other filing process to keep your spouse current. You don't give a sh*t about scaring those who are out of status, because it makes you feel good to be RIGHT. Some of us had/have to spend our money (that would've gone to AOS) on bills and food.

and that's precisely why I was 'late' filing. It took us months to get the AOS fee together and even then we couldn't really afford it but sent it off anyway because it's a vicious circle in that you have to invest that money with the USCIS in order to accumulate the money you need to live.

I apologise if my "rich/lazy" comment was insensitive or flippant but I was trying to point out a couple of unlikely reasons why people would not choose to adjust status. There are people who want to file but CAN'T do it straight away because they can ill-afford to. USCIS adjudicators understand this and do not punish them for being 'late' because technically you do not have to file within 90 days or anytime soon after.

I am just concerned about the scare-mongering about removal proceedings. It's important for people to know that they can live within certain confines and wait until they can afford to adjust status.

[Rebecca Jo 1,962]

However much you guys may shudder at the thought, the fact is Mox and those who are supporting him, are absolutely correct.

The I-94 expiration date, for a K1 applicant, is important only in that it gives the 90 day time limit in which marriage to the K1 petitioner must occur. There is no technical time limit (although there may well be a practical one) on submitting an AOS application. However, the I-485 application for a K1 applicant is conditional upon the date of marriage being within the 90 days and to the person who petitioned you and THAT is why the I-94 is an important document along with your marriage certificate.

There is nothing that I can find or have experienced in any I-485 literature which demands AOS for a K1 applicant within any timeframe. It is just more sensible to apply as soon as possible for largely practical reasons; earning money, having permission to re-enter the country, getting a driving license in some states and so on.

And for those people who have not filed AOS yet, applying 'late' does not have any negative impact on your I-485 application. Of course, if someone can find the expiry date on an I-485 qualification for a K1 applicant then I'm willing to accept that the adjudicator for my AOS application was just a thoroughly nice person and allowed me to be an exception to this rule.

Mox is correct in his contention that nowhere is it spelled out that a K1 must adjust their status prior to the expiration of the I94.

You are correct in your explanation of the expiry of the K1's I-94 as it relates to qualifying for the "short-circuited" adjustment of a spousal application to adjust, i.e. the US Citizen does not have to file an I130 for the alien.

You are also correct in asserting that a filing outside of expiry of the I94 will generally have no impact on the I485 application (all other aspects of the case being satisfactory).

We aren't talking about what happens before expiry of the I94. We aren't talking about what happens at the conclusion of I485. We have been discussing that time frame in-between the two and any possible consequences to the alien.

This isn't a case of Mox being right or others being wrong. It's a case of understanding a subtle yet important nuance.

[Rebecca Jo 1,962]

Some of you people and your self-righteous posts REALLY piss me off. I hope you never lose your jobs prior to having to remove conditions or undergo some other filing process to keep your spouse current. You don't give a sh*t about scaring those who are out of status, because it makes you feel good to be RIGHT. Some of us had/have to spend our money (that would've gone to AOS) on bills and food. And if you even think about giving me that "if you can't afford it, don't do it" K-1 #######, save it. A lot of us lost our jobs after the fact (NOA-2, Visa issuance, POE). People who can't help their situations and are out of status don't need any more help feeling like sh*t. I've seen some of my VJ K-1 friends file their AOS before the I-94 expiry, and they now have green cards or interviews. You have no idea how hard that is to deal with.

You can give us all the stats, links, and deportation scare scenarios you like, but when you do it, try to remember that you are still actually talking to HUMAN BEINGS here.

If you've filed AOS, are filing before the I-94 expiry, filing Naturalization or have your random status situation sorted out, then just be happy knowing that you're awesome, and cut it out with these threads. They only stir the pot and make people feel worthless.

Camie -

This has not been at any point a discussion intended to make people feel bad. Or to make others feel 'better' for having done the 'right' thing.

Everybody has their crosses in life to bear.

Edited February 25, 2010 by JohnnyQuest

[Rebecca Jo 1,962]

For anyone who does want to read applicable links which help clarify the muddy waters, here's a good one from ILW.com, the website for Immigration Daily which is an "immigrant friendly" source.

http://www.ilw.com/articles/2005,0830-eiss.shtm

There is a critical difference between being "out of status" and being "unlawfully present." There are innumerable ways to go out of status. Any violation of nonimmigrant status puts the alien "out of status." For example, if an alien is in a nonimmigrant status, such as H-1B or TN, that requires him to work exclusively for the petitioning employer, and he either works for an additional employer or changes employers all together without prior authorization from USCIS, then he goes out of status upon the first such violation. An alien who ceases employment with the petitioning employer (other than an H-1B employee who is benched with pay) is also out of status. The dependent child of a nonimmigrant who turns twenty-one (and is therefore no longer eligible for dependent status as a "child"), is out of status.

"Unlawful presence," on the other hand, has a very specific meaning. An alien begins to accrue unlawful presence only when:

1. her I-94 has expired and she failed to timely file a non-frivolous request for extension or change of nonimmigrant status.

If she has timely filed an extension of stay or change of status, then she does not accrue any unlawful presence, even after her I-94 expires, for as long as the petition remains pending. If that petition is ultimately approved, then she never acquires any unlawful presence. If it is ultimately denied, then she accrues unlawful presence starting on the date the denial notice is issued; or

2. USCIS or an Immigration Judge finds that the alien has violated her status.[2]

For certain nonimmigrant statuses (F-1 and J-1), I-94s are endorsed "D/S," meaning "duration of status." Since there is no specific expiration date, aliens holding "D/S" I-94 cards do not begin to accrue unlawful presence unless USCIS makes an affirmative finding that the alien has violated his or her status.[3] For example, if an alien holding F-1 status with an I-94 marked D/S applies for a change of status to H-1B, and the change of status is denied because USCIS finds that the alien has violated his F-1 status, then the alien begins to accrue unlawful presence upon the denial of his change of status application, even though the I-94 never "expired." Similarly, if an Immigration Judge makes a determination of a status violation in a removal proceeding of an F-1 or J-1 nonimmigrant who is admitted D/S, unlawful presence begins to accrue even though the I-94 never "expired."

Any nonimmigrant, no matter what his status, who is found by USCIS or an Immigration Judge to have violated his status, begins to accrue unlawful presence upon the date of that finding, even if his I-94 has not expired. Again, USCIS would generally only make such a finding in connection with an application for a benefit, and an Immigration Judge would make this determination in proceedings.

Finally, it is important to note that "unlawful presence" is only relevant to accrual of time toward the three and ten year bars to admission. It is not a ground for removal from the U.S. (although people who are unlawfully present are also out of status, which is a ground for removal). Individuals do not trigger the bar to admission until they actually leave the United States.

When Unlawful Presence Does NOT Accrue

There are certain exceptions to the unlawful presence rules. Section 301(b)(3) of the IIRIRA says that unlawful presence accruing prior to April 1, 1997 does not count toward the three- or ten-year bars. In addition, INA 212(a)(9)(B)(iii) expressly excludes minors, asylees, and beneficiaries of family unity protection from accruing unlawful presence. For the purpose of the bars, "minors" are individuals under age 18. A minor who is unlawfully present while under age 18 does not accrue any time toward the 3 or 10 year bars, but immediately upon turning 18 he begins to accrue unlawful presence toward the bars.

Unlawful presence is "tolled" (does not accrue) during the pendency of a timely-filed, nonfrivolous petition to change or extend nonimmigrant status. In addition, the alien must not have worked without authorization before the change of status or extension of stay was filed, or while it was pending[4]. A petition is considered timely-filed if it is filed prior to expiration of the alien's previous I-94 card.[5] It is "nonfrivolous" if it has an arguable basis in law or fact. An example of a frivolous filing would be a petition to change to H-1B status when the beneficiary has no education or work experience.

If that timely-filed petition is ultimately approved by USCIS, it will be back-dated to when the previous I-94 expired and no unlawful presence will accrue. If the petition is ultimately denied, unlawful presence accrues from the date of denial. (If, however, a timely-filed application is denied because it was frivolous or because the alien engaged in unauthorized employment, any time after the I-94 expiration date will be considered "unlawful presence". Or, in the case of an alien admitted D/S, unlawful presence begins to accrue on the date of denial.

How the Bars Affect People

Aliens who accrue the three or ten year bars are in a sticky situation. Because these aliens are out of status, they are not eligible to reenter a lawful nonimmigrant status by filing for a change of status or extension of stay. 8 CFR 214.1©(4) and 8 CFR 248.1(b) require, respectively, that to extend or change nonimmigrant statuses, one must have maintained the previously authorized status. But on the other hand, if these individuals leave the United States, they are ineligible to reenter for three or ten years. This affects not only people who wish to remain in nonimmigrant status, but also those who qualify for permanent residency. An alien who is subject to the three or ten year bars cannot obtain an immigrant visa using consular processing unless he also obtains a waiver of his inadmissibility, because his departure from the U.S. will trigger the bar. Adjustment of status may be the best option for such individuals.

But on the other hand, adjustment of status may be a problem for individuals subject to the three and ten year bars as well. As per INA 245©(2), an applicant is ineligible for adjustment of status if she "is in unlawful immigration status on the date of filing the application for adjustment of status or ... has failed ... to maintain continuously a lawful status since entry into the United States." However, this does not apply to spouses of U.S. citizens, whether they are applying for permanent residence based on the marriage or based on employment.

[bakofoil 27]

We aren't talking about what happens before expiry of the I94. We aren't talking about what happens at the conclusion of I485. We have been discussing that time frame in-between the two and any possible consequences to the alien.

This isn't a case of Mox being right or others being wrong. It's a case of understanding a subtle yet important nuance.

I thought we were discussing timeframes and just how important that date is on the I-94. In that sense, it is a case of Mox being correct and others being incorrect. The misunderstanding seems to be that AOS has to be filed for before expiry of the I-94 or within some fixed time period thereafter. There is no such requirement and stating otherwise is incorrect. People do and have filed within a timeframe which is convenient to their circumstances.

However, if the subtle and important nuance you seem to be focusing on is that non-submission of an AOS application in a timely period confers little by the way of 'rights' to the person 'out of status' then you are correct. We have already discussed at length and are in general agreement at how unfavourable and inadvisable it is not to adjust status as soon as possible. Not doing so is not going to get you flogged, detained indefinitely or even deported with immediate effect unless you have already left the country and are trying to obtain readmission on a visa that expired the day you first presented it. K1 is a funny little visa, completely like no other.

This is all theoretical anyway, most people need to adjust status. Some people are unable to do so immediately. There are consequences of not adjusting status IF the alien puts themselves at risk but the real subtle and important nuance here is that marriage to a US citizen does, in fact, confer you some benefits which other visa holders do not have at their disposal to assist them in offsetting an overstay.

[Rebecca Jo 1,962]

I thought we were discussing timeframes and just how important that date is on the I-94. In that sense, it is a case of Mox being correct and others being incorrect. The misunderstanding seems to be that AOS has to be filed for before expiry of the I-94 or within some fixed time period thereafter. There is no such requirement and stating otherwise is incorrect. People do and have filed within a timeframe which is convenient to their circumstances.

However, if the subtle and important nuance you seem to be focusing on is that non-submission of an AOS application in a timely period confers little by the way of 'rights' to the person 'out of status' then you are correct. We have already discussed at length and are in general agreement at how unfavourable and inadvisable it is not to adjust status as soon as possible. Not doing so is not going to get you flogged, detained indefinitely or even deported with immediate effect unless you have already left the country and are trying to obtain readmission on a visa that expired the day you first presented it. K1 is a funny little visa, completely like no other.

This is all theoretical anyway, most people need to adjust status. Some people are unable to do so immediately. There are consequences of not adjusting status IF the alien puts themselves at risk but the real subtle and important nuance here is that marriage to a US citizen does, in fact, confer you some benefits which other visa holders do not have at their disposal to assist them in offsetting an overstay.

But those benefits of adjusting via marriage to a USC are not unique to the K1 entrant. Virtually any alien who is inspected at entry (except a few such as crewmen) has the benefit of "out of status" time forgiveness IF they adjust via marriage to a USC. I'm sorry and not taking "aim" at you personally, but that sort of logic is what gives folks the impression that the K1 entrant's status is somehow "protected" under the law.

The odds may be small of a K1 entrant (outside of the expiry of the I94 yet still not under color of law by virtue of an accepted 1485) suffering any consequences for that action. But the simple truth of the matter is the odds are only so inconsequential because there are too many aliens and not enough enforcement agents. If the entire of the United States of America had the enforcement presence of many border states, I can assure you the "opinion" (to use Mox's word) of many would change.

*edited for clarity*

Edited February 25, 2010 by JohnnyQuest

[bakofoil 27]

Believe me, I am not taking anything personally. We were discussing AOS from family based visas, in particular the K1, if that puts some context to my logic.

I think you misunderstood my statement about the K1 being a funny little visa and that somehow I was suggesting it provides some 'protection'. It is marriage which provides this protection as long as you remain in the country if you have not already obtained advance parole or conditional residency.

I have been trying to stress throughout this conversation that leaving the country or flirting with border authorities is most likely the very thing which is going to put a person at risk if they are 'out of status'. If you leave the US the day after you arrive on the K1 and try to re-enter, married or not, you're screwed in terms of being admitted at that time, because the visa expired the day you used it. You can still be admitted to the US later, after you've followed the relevant procedure. The K1 visa doesn't provide the protection at all, except that if you married within 90 days of entry you have met the conditions to adjust status following admission to the US on a K1 visa.

There is a concession for those on a K1 visa who miss the 90 day deadline for marriage, to remain in the US and apply for AOS along with an I-130, as long as they married the original petitioner. Obviously it's more hassle and additional expense but they can remain within the US and adjust like those adjusting through marriage from other types of visa. It's an example of how marriage to a US citizen (for clarification, in the case of a K1 adjuster the actual person you were supposed to marry in the first place) confers a benefit to the person seeking adjustment from an overstay. Not the end of the world as some would have us believe.

[SunDrop 59]

What seems to have got lost in all this, is what the original question was.

Can the beneficiary be deported if we don't file his AOS?

From everything that has been said, there is anecdotal evidence that there is a risk of detention with the threat of deportation - note, not an absolute - IF you are unfortunate enough to be stopped by a CBP/ police officer AND your I-94 expiry date has passed.

Everyone going through this wants to create - as far as is possible in practice - as smooth and trouble-free process as humanly possible.

So when someone asks the above question, surely it is only correct to respond with reassurance of what they would need to do, again as far as is humanly possible in their individual case, to ensure that there is never a threat of deportation.

Camie, I'm PMing you

[SunDrop 59]

If you mean risk of deportation based solely on the lack of status adjustment, then even those who disagree with me have conceded that this is highly unlikely.

Which brings us back to only as likely as where you happen to be. NH vs. AZ as an example, I'm far, far more likely to run into CBP in AZ than NH...

If you mean risk of being detained or harassed because an officer doesn't know the law, then welcome to the United States it happens to citizens too. Civil servants who don't know how to do their job are a threat not only to immigrants.

This is true the world over. The difference is a USC or even an approved LPR has more recourse in these situations.

Wut? Where have you ever heard this?

I've since established that this is only the case if the pre-AOSer leaves the country after their I-94 expires. My uncertainty was why it was posed as a question.

No. The question now should be "what is the law, and how can I make the difference between my own opinion and what the law says, as clear as possible?" ... By all means, give advice, just make sure that the recipient understands that this is your advice, your opinion, and by the way here's what the law says.

So what you're really taking issue with is the turn of phrasing that I use? Then you flatter me

Except that it is scaremongering. "Heed my advice or you could find yourself spending time as Crazy Lucy's prison b1tch right before being tossed out of the country." A rounded, considered response will begin with "here's what the law says..."

Except everyone seems to be struggling to find the law that says that....

[VanessaTony 3,567]

My typical response to the "Am i gunna get in trouble if I don't file AOS before the I-94 expires?" question is a variation on this:

"There is no "deadline" for applying for AOS, as long as you marry within 90 days of arriving on your K1 visa. However it is recommended that you apply before your I-94 expires as some people have experienced issues with ICE (not deportation, just hassles and on 2 occasions I've read about, being locked up until a judge tells the ICE person they were wrong and being forced to pay fees as well as immediate AOS), but just as many (if not more) have had no issues and applied for AOS years after their I-94 expires. My main reasons for applying ASAP is because I want to work and I personally don't like not being "sure" of my status. Also, if there is a period of 180 days between your I-94 and the date your AOS is processed, you MAY encounter a ban on trying to re-enter the US if you leave and try and use the AP document. For that reason, try and apply for AOS well before 180 days after your I-94 expires... just to be safe."

The main issue with this K1 is there is no obvious definitive answer. Until someone hands me a piece of paper, LEGAL paper, telling me that not filing after I-94 expiry means I'm completely 100% safe, I will never be sure and will always say "file ASAP".

I would also like to think that if you do not, in fact, need to apply for AOS at all if you don't feel the need (as stated by mox) then why aren't you legally allowed to work? Legally allowed to come and go as you please? You are officially in "limbo" until you file AOS. Safe or not you can't do anything. It's INCREDIBLY boring and you can't get a drivers licence, or a job. Ugh.

I personally am waiting for financial reasons (which are solved later this week.. woot!! ) but I also know from EXTENSIVE reading that I'm still able to file AOS after I-94 expiry (someone had previously said (months ago) that you HAD to file during the I-94 period or it wouldn't be allowed) and that was what was important to me. I know that I COULD get hassled by a CBP or ICE officer but that they can't kick me out.. just cost me a lot of $$ and stress while they're told that "yes, I'm legal" so I stay away from borders and public transport. It's just a stressful situation for me because I don't have the money for AOS, so why would I have the money to be hassled?

I would like a deadline personally, like 90 days to get married, 6 months from entry to apply to adjust status. That fits with the AP deadline too. It means it (immigration) needs to be more planned and not "I'll figure out the rest when you get here". A marriage licence doesn't take 3 months to arrive. It's just so much easier, in my mind, to have strict rules and guidelines. Not loopholes or conjecture.

Edited February 25, 2010 by Vanessa&Tony