AOS before or after I-94 expires

[Rebecca Jo 1,962]

Did the person in GreenCard enter the country with a visa specifically for the purposes of marrying?

Did the act of marrying complete the requirements of a visa that they entered the country upon? No it didn't.

Does me saying some lovely magic vows to my partner and him saying them back to me do anything at all? Most days not, but one day we said nice things to each other, and it was in front of someone who had the power to make those words magically legally binding, which then allowed us to apply for a visa.

There's such a thing as context, ya know. Marriage is a different thing in the context of a K-1 than it is in the context of someone here on a VWP or B-1 and then marrying.

Sorry. You're going to have to be a little less oblique.

[VisaJourneyLady 33]

Sorry. You're going to have to be a little less oblique.

No. I just don't think I am.

[Rebecca Jo 1,962]

No. I just don't think I am.

Then you'll just have to take your toys and go play with other children.

[mox 298]

Like I said before, each visa comes with it's own caveat and strings attached. I could do the same with the F-1 and make it sound oh-so-special--Seriously, how many non immigrant visas do you know of that REQUIRE you to take 12 credits a semester by law? Weird, huh? How many non-immigrant visas allow you to work only 20 hours during the semester but 40 during the summer! Oh wow! How many non immigrant visas do you know of that allows you get a fancy post-graduation EAD/OPT and allows you to work? Hai!

Wow, atomic-level granular much? Each one of those visas has something in common: they all expect that you will come here for a specific purpose (tourism, work, study, diplomacy, etc), that you will stay for awhile, and then you will leave. Or that you will come specifically for the purpose of immigration, and adjust status. On all of these visas, you are actually in the country "on a visa." The K1 is different in that while you are entering for a specific purpose, your visa is cancelled right at the exact moment you use it. Furthermore, it is a non-immigrant visa that allows for immigration. This is what makes it different. Now feel free to argue semantics some more if you wish, but you're latching onto the wrong part of the argument. It's not about how "special" the K1 is, it's how it works.

[sachinky 465]

I thought you made it clear that you were saying that if an alien stayed past the designated I-94 date, they're still in legal status even if they've not filed for AOS, as long as they married their USC petitioner. If I didn't understood you correctly -- then what is it that you ARE you trying to say? I distinctly remember you said something about showing your marriage certificate and your (expired) I-94 should you get into any trouble and everything will be fine, presuming the officer is well-versed in these laws. How are you still "in status" if your I-94 has expired? What is that going to prove to the officer apart from the fact that you entered legally, and are currently married to a USC? Neither of those things by themselves grants any special immigration benefits, apart from the right to AOS from a K-1.

Yes, I get you don't have to apply for AOS before the 90 days, or ever at all. That's not in discussion. What is, is that whether post-I-94 date, the alien is still in status or out of status. It's either one or the other. Let's not go around this again.

Edited February 25, 2010 by sachinky

[SunDrop 59]

Advising them to prioritise AOS, or to cautious of doing/avoiding certain things otherwise it *might* land them in trouble is far more helpful.

Agreed.

If the question is 'Can they?' the response is "No, not if you meet x, y, and z criteria.'

The only thing that I failed to add is that you are not going to be condemned to a life of abject misery, wrenched from the arms of your loved one and thrown to the lions if you don't file AOS before your I-94 expires. But there is a risk, however tiny, that you could be detained temporarily until it gets resolved...

Or, less dramatically, the answer to the question 'can they?' remains 'no, not if you do x, y and z before your I-94 expires. There is no law stating you MUST file before that time, but filing asap is recommended to avoid any possibility of your status being challenged. You should also know that not filing before your I-94 expires will not interfere with filing, since any overstay is forgiven and your status will change immediately to 'pending adjustment'.

In short, I wasn't "wrong" when I responded to Beatlesrebel, but I could have been more thorough in my answer....

[F & J 21]

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.

[VisaJourneyLady 33]

Then you'll just have to take your toys and go play with other children.

*sigh*

The marriage is the fulfillment of the terms of the K-1. Other visa's have other terms you must fulfill like staying employed with the particular employer that employed you, or going to the college you said you were attending. The reason that marriage doesn't provide any change to your status in other situations besides the K-1, is because you never entered an agreement with the US government beforehand in situations other than the K-1. Doyasee?

In my person opinion the K-1 is completely dumb and they should overhaul it completely. I didn't opt for that sucky visa, but, as they say, whatevs.

[sachinky 465]

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.

Thanks for pretty much summing up what I was trying to say, albeit more eloquently. The horse's mouth good enough for ya, Mox?

Edited February 25, 2010 by sachinky

[F & J 21]

In my person opinion the K-1 is completely dumb and they should overhaul it completely. I didn't opt for that sucky visa, but, as they say, whatevs.

Before my fiance went to the embassy, we had no idea how immigration worked. My fiance just asked what the fastest way to bring me to the U.S. would be and the embassy told him that the I-129F / K-1 was processed faster so we went that route. (If our I-129F hadn't been approved, we probably would've gone the IR-1 way.) We only found out about AOS when I found VisaJourney while preparing our I-129F packet.

I'm still grateful for the K-1 visa because my fiance and I are finally together, married and building our life together. I have to admit that I do wish the instructions were more clear-cut. After my I-94 expired and the months we kept having to hold off filing, I felt like I was in limbo despite the call we made to the USCIS NCSC and my husband asking them if someone would come knocking on our door and take me away... (to which they said, no. LOL).

Thanks for pretty much summing up what I was trying to say, albeit more eloquently. The horse's mouth good enough for ya, Mox?

And a little note, I really don't mean to offend anyone (just hoping to help with the discussion) - I just posted what they told us as close as I could remember the exact words (they really did use the words, "out of status").

Edited February 25, 2010 by Fatima and Jim

[mox 298]

I thought you made it clear that you were saying that if an alien stayed past the designated I-94 date, they're still in legal status even if they've not filed for AOS, as long as they married their USC petitioner. If I didn't understood you correctly -- then what is it that you ARE you trying to say? I distinctly remember you said something about showing your marriage certificate and your (expired) I-94 should you get into any trouble and everything will be fine, presuming the officer is well-versed in these laws. How are you still "in status" if your I-94 has expired? What is that going to prove to the officer apart from the fact that you entered legally, and are currently married to a USC? Neither of those things by themselves grants any special immigration benefits, apart from the right to AOS from a K-1.

Yes, I get you don't have to apply for AOS before the 90 days, or ever at all. That's not in discussion. What is, is that whether post-I-94 date, the alien is still in status or out of status. It's either one or the other. Let's not go around this again.

Sachinky, every player in this conversation seems to understand *what* I'm saying (even if they disagree) except you. I've posted pretty extensively in this thread, and it's only for you that I seem to have to repeat myself over and over and over. I don't mean this unkindly, but maybe if you go back to page 1 and read with an openly critical mind, you'll at least understand what I've written, even if you don't necessarily agree with me.

Thanks for pretty much summing up what I was trying to say, albeit more eloquently. The horse's mouth good enough for ya, Mox?

*sigh*

Seriously. Read.

[Rebecca Jo 1,962]

*sigh*

The marriage is the fulfillment of the terms of the K-1. Other visa's have other terms you must fulfill like staying employed with the particular employer that employed you, or going to the college you said you were attending. The reason that marriage doesn't provide any change to your status in other situations besides the K-1, is because you never entered an agreement with the US government beforehand in situations other than the K-1. Doyasee?

In my person opinion the K-1 is completely dumb and they should overhaul it completely. I didn't opt for that sucky visa, but, as they say, whatevs.

Thanks. I thought you meant something like that. I thought it best to ask for clarification only because things seem to be getting taken quite a bit out of context here.

And I understand what you are saying. Would you then equally say that accepting the K1 visa, entering the US, and fulfilling the terms of the visa by marrying the USC petitioner, creates an onus on the alien to adjust their status? That there is an implied agreement between the alien and the US government to maintain legal status?

[mox 298]

Thanks. I thought you meant something like that. I thought it best to ask for clarification only because things seem to be getting taken quite a bit out of context here.

And I understand what you are saying. Would you then equally say that accepting the K1 visa, entering the US, and fulfilling the terms of the visa by marrying the USC petitioner, creates an onus on the alien to adjust their status? That there is an implied agreement between the alien and the US government to maintain legal status?

There's no legal basis for such an "agreement," implied or otherwise, unless perhaps it's been established in case law. Otherwise, the notion that there is or is not an (implicit or not) agreement between the US and the petitioner to adjust status is opinion. I suppose some government lawyer could go in front of a judge trying to justify why a legally present immigrant has been dragged off the streets for absolutely no reason and argue "but your honor, there's an implied agreement yadda yadda..." But otherwise, it may be an interesting philosophical question but it has no basis in law.

[F & J 21]

- 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.

I went back to the first few posts and this is basically what the CBP officer told us - that technically, the K-1 visa holder does not have to file AOS but then he/she wouldn't have any of the privileges that a person who has successfully adjusted status would be entitled to.

So, I agree with mox on this ^__^;;

Edited February 25, 2010 by Fatima and Jim

[sachinky 465]

Oh, good, the dramatic *sighs* are making a comeback.

For a darned foreigner, I'd say my reading/writing/comprehension skills are so-so. Pardon me. So far, apart from you insisting that you are correct in your position (that a person doesn't go out of status post the expiry date on the I-94 even if they've not filed for AOS,) I've not seen one legal source or even an anecdote from the USCIS, CBP, immigration lawyer. I could easily be wrong -- I'm not a lawyer trained in immigration affairs and I'm fairly certain neither are you since your reasoning doesn't even follow the path of logic. However, since you've been so kind as to repeat your point over and over and over again, maybe you could do me one last favor and post what is it that you're saying -- assuming I've not understood you yet -- in clear English without any of your condescension.

Yes, I get you don't have to apply for AOS before the 90 days, or ever at all. That's not in discussion. What is: assuming marriage has taken place in 90 days but AOS has not been filed and the I-94 expires -- is the alien is still in status or out of status. It's either one or the other. And yes, I know that's not the same as being illegal so don't go off on a tangent on that -- so which one is it, Mox?

Edited February 25, 2010 by sachinky