Just to clarify...

[ryna 132]

My wife arrive on her K-1 back in January and her I-94 expires tomorrow. We filed her AOS back on 3/21 (received by USCIS) figuring it would be enough time to get the NOA1 processed before 4/1 (I-129F only took 2 days between receipt and NOA1 . ) Apparently, it isn't....

We applied for her AOS, EAD and AP at the same time. Now for the question...

Is she "out-of-status" staring tomorrow and/or accumulating overstay days because USCIS hasn't issued the NOA1 yet? I've seen that it doesn't matter from an AOS perspective (as long as she doesn't leave the U.S.) but I'm a bit concerned that if she's granted the AP in a couple of months and we travel out of the country before the GC arrives, they'll hold it against her and won't let her return because of "overstay".

Anyone know how that works during the limbo known as K-1 to LPR AOS?

[Dakine 26]

Yep she is out od status but as long as you have the NOA1 and stay away from borders where she may be checked she shouldn't have any problems. Sad that USCIS doesn't have a better catagory when peeps apply for AOS.

[Brother Hesekiel 2,236]

She's "out of status" until the NOA1 has been issued, even if you haven't received it yet. If she got caught up into the raid of the century, ICE would be able to establish her pending AOS purely based on the K-1 visa and I-94 alone. Even in the worst case scenario, she would not be deported as she is eligible to file for AOS, which you already did.

Discussing all of this is like finding the right approach for a space shuttle landing on Venus, at a time where you don't even have a space shuttle.

[YuAndDan 153]

Yep she is out od status but as long as you have the NOA1 and stay away from borders where she may be checked she shouldn't have any problems. Sad that USCIS doesn't have a better catagory when peeps apply for AOS.

Actually status is AOS pending, out of status time will not acrue until after a decision is made on the adjustment of status.

You are fine, unless you had put off filing I-485 until more than 6 months after the I-94 expired, if that were the case, then traveling on AP would not be advisable.

The I-485 NOA1 letter will serve as proof of status until it is approved.

[CQ & CS 2]

Yes she will be "Out of Status" as of tomorrow but you have filed AOS so that is another story. By the time you get your AP to travel you should have had your NOA1 for I-485 already. Usually, USCIS sends NOA1 for all of them (AP-AOS-EAD) at once so you should be expecting three NOA1 from mail. According to the timelines, it takes approximately 10 days from the date they received your package. But some people wait longer/shorter than that. You are still less than 10 days so sit back and relax!

[ryna 132]

Yes she will be "Out of Status" as of tomorrow but you have filed AOS so that is another story. By the time you get your AP to travel you should have had your NOA1 for I-485 already. Usually, USCIS sends NOA1 for all of them (AP-AOS-EAD) at once so you should be expecting three NOA1 from mail. According to the timelines, it takes approximately 10 days from the date they received your package. But some people wait longer/shorter than that. You are still less than 10 days so sit back and relax!

I agree that 10 days is really nothing. I suppose I'm just uncomfortable with the term "Out-of-status", especially without an NOA1 in hand.

[teresaandkurt 2]

Yeah, I'm with you on not liking being in this gray area. My husband and I now have our NOA in hand, but still... it's just a little unnerving...

[Dakine 26]

I can't remember the details but a year+ or so ago a lady had to hire a lawyer and attend a removal hearing as she was caught by ICE while waiting for her 2 year GC.

[VanessaTony 3,567]

Actually status is AOS pending, out of status time will not acrue until after a decision is made on the adjustment of status.

Actually there is no such status as "AOS pending". The correct term is "period of authorised stay".

[VanessaTony 3,567]

She is out of status but she's in a "period of authorised stay" once the AOS is accepted.

Even with the NOA1 in hand ICE officers MIGHT detain her. She won't be deported but she might get put in detention and go before an immigration judge who will then set her free. The issue is ICE officials sometimes don't know about the k1 rules and to them she'll just look like she's an overstay.

Until her NOA1 is dated she is accumulating overstay days but she should get it soon and it shouldn't be an issue.

[Harpa Timsah 13,258]

She can travel once she gets her AP. A few days of overstay will not prevent her from coming back to the country with her AP. That only matters after 6 months (though people here try to scare people and say it's any overstay, and that's not true). As has been said, once the NOA1 is issued, she is back in authorized stay and the post-90-days clock stops.

You may be uncomfortable with any out-of-status days, but just know that the US government sort of expects this might happen to many K-1 people and all will be fine. Good luck.

[beppo 8]

Unlike me which didn't AOS until 2 years after we married (for financial reasons)

I for sure will not be going near any borders.

[ryna 132]

What's really not cool is that it's not based on when you filed but when they finally get off their rear ends and process it. 2 days, 10 days, 30+ days? Who knows and not their problem...

Even with taxes, it's the postmark that counts not when they log it. I don't see why another agency of the same Federal government should be allowed to use a different standard.

Oh well, maybe the NOA1 will be dated as of today which is the actual day the I-94 expires. Then, there'd be no official overstay.