I-485 & I-!30 checklist

[Harpa Timsah 13,258]

Once your I-94 expired, you were "out-of-status." That is illegal presence. The I-94 tells you how long you can legally stay in the US. People here use "overstay" or "out-of-status" to differentiate between that and people who jumped the border, but both are illegal presence.

Now, as the spouse of a US Citizen, any overstay is irrelevant/forgiven when you adjust status. So for that, it does not matter. That is why there is no real deadline for AOS from K-1, though people suggest to get it out before the 90 days are up so as to avoid any out-of-status days. You should know, however, that you currently have no legal status - for instance you cannot travel and come back.

Your I-131 travel document will be approved. BUT, right on the document it will say "Note - if you have accrued any illegal presence beyond 180 days" you cannot use this AP document. When you leave, before you have the GC, you will automatically trigger a 10-year ban on reentry. It's kind of silly to me, to approve the AP doc when it cannot be used, but they don't bother to check your past, just routinely approve them all and say "use at your own risk." That's why I suggested not to even bother sending it in - unless you want a cool souvenir.

Once you get the package accepted for review, you will begin a NEW period of authorized stay, but the ban will be in effect if you leave up until you get your GC.

Good luck!

Edited March 6, 2011 by Harpa Timsah

[beppo 8]

Once your I-94 expired, you were "out-of-status." That is illegal presence. The I-94 tells you how long you can legally stay in the US. People here use "overstay" or "out-of-status" to differentiate between that and people who jumped the border, but both are illegal presence.

Now, as the spouse of a US Citizen, any overstay is irrelevant/forgiven when you adjust status. So for that, it does not matter. That is why there is no real deadline for AOS from K-1, though people suggest to get it out before the 90 days are up so as to avoid any out-of-status days. You should know, however, that you currently have no legal status - for instance you cannot travel and come back.

Your I-131 travel document will be approved. BUT, right on the document it will say "Note - if you have accrued any illegal presence beyond 180 days" you cannot use this AP document. When you leave, before you have the GC, you will automatically trigger a 10-year ban on reentry. It's kind of silly to me, to approve the AP doc when it cannot be used, but they don't bother to check your past, just routinely approve them all and say "use at your own risk." That's why I suggested not to even bother sending it in - unless you want a cool souvenir.

Once you get the package accepted for review, you will begin a NEW period of authorized stay, but the ban will be in effect if you leave up until you get your GC.

Good luck!

Oh ####### that sucks. So as I have to wait for my greencard to travel (which I was hoping to go back to the UK in October) What is a rough timeline to receive the green card?

[Harpa Timsah 13,258]

Hmm, I am not sure if you would be required to have an interview like other concurrent cases, but I suspect so. That would be actually good for you, because lately those with interviews are getting done in about 3-4 months. Sometimes the K-1 AOS cases sent to CSC take 6 months +.

Edited March 6, 2011 by Harpa Timsah

[Haarp425 26]

Did I say it gave me legal stay? All I'm asking is where did you get your information that you have to AOS withing 90 days and that I'm on an overstay and not out of status?

Ok. I'll explain it again.

1st Example:

90 days authorized stay for K-1 based on I-94 stamp.

Within 90 day's for K-1 based on I-94 stamp got married.

90 day's authorized stay passed without AOS. <-- You are out of status and overstayed your authorized admission.

Unlawful presence starts counting.

AOS filed. <--- unlawful presence temporarily stops under approval of AOS or denial of AOS.

You can't leave the USA while AOS is pending because you will be subject to 3/10 year ban. (Illegal aliens with six to 12 months of unlawful presence are barred for three years; those here for more than a year illegally are barred for 10 years.)

2nd Example:

90 days authorized stay for K-1 based on I-94 stamp.

Within 90 day's for K-1 based on I-94 stamp got married.

AOS filed within 90 day's authorized stay.

90 day's authorized stay passed.

No unlawful presence is counted against you because there is no gap between your I-94 and filing of AOS.

You can get AP and come back to USA while AOS is pending.

Please read 6.1 on this link? http://www.visajourney.com/faq/k1k2visa-aos.html#6.13

Edited March 6, 2011 by Haarp425

[beppo 8]

Ok. I'll explain it again.

1st Example:

90 days authorized stay for K-1 based on I-94 stamp.

Within 90 day's for K-1 based on I-94 stamp got married.

90 day's authorized stay passed without AOS. <-- You are out of status and overstayed your authorized admission.

Unlawful presence starts counting.

AOS filed. <--- unlawful presence temporarily stops under approval of AOS or denial of AOS.

You can't leave the USA while AOS is pending because you will be subject to 3/10 year ban. (Illegal aliens with six to 12 months of unlawful presence are barred for three years; those here for more than a year illegally are barred for 10 years.)

2nd Example:

90 days authorized stay for K-1 based on I-94 stamp.

Within 90 day's for K-1 based on I-94 stamp got married.

AOS filed within 90 day's authorized stay.

90 day's authorized stay passed.

No unlawful presence is counted against you because there is no gap between your I-94 and filing of AOS.

You can get AP and come back to USA while AOS is pending.

Please read 6.1 on this link? http://www.visajourney.com/faq/k1k2visa-aos.html#6.13

Thanks for the input and reply's Haarp. Sorry If i sounded a bit snippy. We just can't wait to this documents sent off and hope everything goes smoothly.

[Haarp425 26]

Thanks for the input and reply's Haarp. Sorry If i sounded a bit snippy. We just can't wait to this documents sent off and hope everything goes smoothly.

No need to say sorry. I would ask same questions and clarifications too if I was in your situation.

[Mykuls Merry Ann 4]

There is a lot bad info given on this thread. A person entering the US on a K-1 visa has the obligation to marry within the 90 days of entering the U.S. There is no term called "unlawful presence" that is some #######!

The issue here is there no real time period that tells anyone to file the AOS. There is no penalty for filing after 90 days, or after the I-94 expires. Now the K-1 visa person cannot work or get other benefits but they are not in some unlawful presence or doing anything wrong. When they are ready to file they can get AOS just like anyone...

We have to be careful when we pass out information that we are not sure is correct.

[Mykuls Merry Ann 4]

Where you getting your information that someone does not AOS within 90 days is here illegaly? I honestly have't heard of that before. The link which you gave doesn't state I'm here illegaly as I married within 90 days on a K1.

Please do not listen to the person giving you bad information...there have been plenty of people who have filed AOS up to about 2 years late...Yes you are "out of status" but you are not living in the U.S. illegally.

[Harpa Timsah 13,258]

Please do not listen to the person giving you bad information...there have been plenty of people who have filed AOS up to about 2 years late...Yes you are "out of status" but you are not living in the U.S. illegally.

I suggest you do some reading because you are incorrect.

[Haarp425 26]

There is a lot bad info given on this thread. A person entering the US on a K-1 visa has the obligation to marry within the 90 days of entering the U.S. There is no term called "unlawful presence" that is some #######!

The issue here is there no real time period that tells anyone to file the AOS. There is no penalty for filing after 90 days, or after the I-94 expires. Now the K-1 visa person cannot work or get other benefits but they are not in some unlawful presence or doing anything wrong. When they are ready to file they can get AOS just like anyone...

We have to be careful when we pass out information that we are not sure is correct.

Wow. I just want to know how do you define "out-of-status"? .... Is it legal stay? I don't think so.

Let me provide you this information and let me know how you interpret it.

Deportable Alien

An alien in and admitted to the United States subject to any grounds of removal specified in the Immigration and Nationality Act. This includes any alien illegally in the United States, regardless of whether the alien entered the country by fraud or misrepresentation or entered legally but subsequently violated the terms of his or her nonimmigrant classification or status.

If you need the source. Here it is. http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=a097136d2035f010VgnVCM1000000ecd190aRCRD&vgnextchannel=b328194d3e88d010VgnVCM10000048f3d6a1RCRD

[Mykuls Merry Ann 4]

Wow. I just want to know how do you define "out-of-status"? .... Is it legal stay? I don't think so.

Let me provide you this information and let me know how you interpret it.

Deportable Alien

An alien in and admitted to the United States subject to any grounds of removal specified in the Immigration and Nationality Act. This includes any alien illegally in the United States, regardless of whether the alien entered the country by fraud or misrepresentation or entered legally but subsequently violated the terms of his or her nonimmigrant classification or status.

If you need the source. Here it is. http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=a097136d2035f010VgnVCM1000000ecd190aRCRD&vgnextchannel=b328194d3e88d010VgnVCM10000048f3d6a1RCRD

She did not violate the terms of the non-immigrant classification...She did what she was suppose to do. The only obligation of a K1 visa holder is to marry within 90 days of entering the United States. She did what she said she would do, and she followed the law... There is no law out there that tells her to file the AOS within a certain time perions or 90 days...Please get your information correct before you pass it to people who need the truth!

[Haarp425 26]

She did not violate the terms of the non-immigrant classification...She did what she was suppose to do. The only obligation of a K1 visa holder is to marry within 90 days of entering the United States. She did what she said she would do, and she followed the law... There is no law out there that tells her to file the AOS within a certain time perions or 90 days...Please get your information correct before you pass it to people who need the truth!

Again. Wow. You are still not getting it. There are still some people who can't handle the truth. Let me break it down again.

Of course there is NO law requiring you to AOS before your authorized stay is up. Of course there is NO law preventing you from using AP while "Out of Status" in the USA and using AP to return. On the first case, you will be accumulating unlawful presence which count against you and temporarily stops until you file AOS. The second case, you will be subjected to 3/10 years ban if you have accumulated more than six to 12 months of unlawful presence are barred for three years; those here for more than a year illegally are barred for 10 years.

Note: An illegal alien is defined as: Alien illegally in the United States, regardless of whether the alien entered the country by fraud or misrepresentation or entered legally but subsequently violated the terms of his or her nonimmigrant classification or status.

Common sense dictates that you need to AOS before your 90 days authorized stay as stated in your I-94. So, you married within 90 days of authorized stay on the I-94. So?

Marrying a USC within 90 days of authorized stay on the I-94 does NOT give you some sort of "legal status" after the 90 days of authorized stay is up on your I-94. Marrying within 90 days of authorized stay on the I-94 is only accomplishing your K-1 visa requirements.

Upon arriving at a port-of-entry and when admitted, a CBP officer places a small white card, Arrival-Departure Record, Form I-94 or a small green card, in your passport. This card is very important as it shows permission to be in the U.S. On this card, the CBP officer records a specific date that signifies the date you must exit the U.S.

Staying beyond the period of time authorized, by the Department of Homeland Security, and out-of-status in the U.S., is a violation of U.S. immigration laws, and may cause you to be ineligible for a visa in the future for return travel to the U.S. If you overstay the end date of your authorized stay, as provided by the CBP officer at a port-of-entry, or United States Citizenship and Immigration Services (USCIS), your visa will generally be automatically be voided or cancelled. <----- This is why you must AOS before your I-94 expires to prevent becoming "Out of Status" and accumulating unlawful presence.

http://travel.state.gov/visa/temp/info/info_1298.html

Please provide me some links from USCIS for your argument.

Edited March 7, 2011 by Haarp425

[VanessaTony 3,567]

Mykuls Merry Ann, Please refrain from posting this incorrect information. Your posts are incorrect, not entirely, just misinterpretation, and could cause severe issues for many people.

You are obviously incredibly confused about the terms of the K1, and the I-94 and AOS.

1. Someone who DOESN'T marry in the 90 days and instead returns home, would, in YOUR definition, be violating the terms of her visa. This is incorrect. The K1 visa permits you the enter the US for the purposes of marrying their USC petitioner. If you don't, it's not a problem.

2. As soon as you arrive in the US on the K1, the K1 is dead. Your ENTRY status was k1, but your period of authorised stay is determined by the I-94, which expires 90 days after entry. Using your example, someone who enters on a work visa isn't violating the terms of their visa by continuing to work after it expires (after all their visa allowed them to work). This of course is ridiculous and incorrect.

3. The terms of the K1 do NOT include marrying in 90 days, in order to AOS BASED on the K1 you need to marry in the 90 days, this is an AOS requirement, not K1 requirement. You can STILL marry AFTER the 90 days however you would need to file an I-130. If we use your definition the person marrying AFTER 90 days has violated the terms of their visa. That's incorrect.

4. The terms of the K1 include ONLY marrying the petitioner and the petitioner only. If someone entered on a K1 and married someone else other than their petitioner they would not be permitted to AOS. They would need to leave the country and file for a new visa (CR-1 or IR-1 depending on the length of the marriage).

The OP did NOT violate the terms of her visa (because she married her USC petitioner), but she DID overstay and she is now out-of-status. She is NOT illegal because she did NOT enter illegally. She is an overstay. She can still be detained by ICE officials however the Immigration Judge would tell her to immediately file AOS... this isn't because of her K1, it's because as the spouse of a USC she is given the benefit to AOS if she can. However my previous caveat re original petitioner of course matters.

Please read this: http://www.visajourney.com/forums/topic/298853-clarify-a-debate/ which hopefully will help you understand status and overstay.

In short though - the OP is deportable because she is out of status BUT because she is married to a USC she will typically (it isn't a given, but it happens usually) be given the chance to AOS. While many people have AOSed after the I-94 expired (myself being one of them) you ARE out of status. You ARE able to be locked up in detention and you ARE able to get the many thousands of dollars in legal fees etc. Please do not go around saying "it's no big deal" because it very well can be and HAS been for a few people on here who've been unlucky enough to be caught by ICE.

Edited March 7, 2011 by Vanessa&Tony

[VanessaTony 3,567]

Hello VJ members

Myself and the wife will be sending of the I-1485 & I-130 in a few days. Can anyone please tell me if all the douments were sending is good to go? Below is a checklist of what were sending off. Thanks again folks, we appreciate the help the last few months.

I-458 checklist

1 - Cover page for I-485

2 - Check for $1070 make sure it's made out to U.S. Department of Homeland Security. Cheque instructions here: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3850a99ba78af110VgnVCM1000004718190aRCRD&vgnextchannel=fe529c7755cb9010VgnVCM10000045f3d6a1RCRD

3 - Copy of non US citizen passports including (all pagers) does not need to be all pages. Just the page with photo and entry stamp page

4 - Copy of I-94 (both sides)

5 - Copy of NOA2 from I-129f this should be needed because you're not AOSing based on the K1

6 - Copy of non US citizen birthcert

7 - Certified copy of marriage cert only needs to be a regular photocopy but if you want to send certified its up to you

8 - G-325a, signed and dated (2 passport photos, full name and A# on back)

9 - I-693 medical examination

10- I-864 Affadavit of support including support documents such as tax transcripts etc see here: http://www.visajourney.com/forums/topic/235331-aos-ead-ap-from-k1-the-aussie-way-doc-list-included/

11- I-765 application for employment See this thread for supporting docs: http://www.visajourney.com/forums/topic/235331-aos-ead-ap-from-k1-the-aussie-way-doc-list-included/

12- I-131 application for travel doc Do not send because you can't use it.

13- G-1145 E-notification

I-130 checklist

1 - Cover letter for I-130

2 - Check for $420 make sure it's made out to U.S. Department of Homeland Security. Cheque instructions here: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3850a99ba78af110VgnVCM1000004718190aRCRD&vgnextchannel=fe529c7755cb9010VgnVCM10000045f3d6a1RCRD

3 - I-130 petition

4 - Copy of US Citizens passport

5 - Copy of immigrants birth cert or passport (Is birth cert ok) birth cert is fine

6 - Certified copy of marriage cert

7 - Copy of divorce docs ( We didn't do certified, is this ok)

8 - G-325a filled out by US citizen (photo insterted on back)

9 - G-325a filled out by foregin spouse ( photo inserted on back)

10 - Various documents of bona fide marriage eg - Joint lease, car insurance in joint names, bank account, directv, water and electric etc.

11 - 4 photos of our wedding, 4 photos of family members (were in all of the photo's)

12 - 2 affadivit's of very close friends who live in the same neighbourhood (both notarized)

I'm sure their is more we could put in, but don't want to overspill. Will above what I've stated be all ok and ready to go?

Thanks again folks.

Few corrections in red above

[Mykuls Merry Ann 4]

Few corrections in red above

Again there is no timeline to AOS, there have been hundreds of people who have AOSd after there I-94 expired and they have been approved.