arrived US on K1 visa recently married and wants to go home

[Juan & Nan 12]

Yea, I completely agree with you... I had to weigh out the risks and the potential for disaster, against my wifes strong desire to see her daughter and her family..

After asking a few times here on VJ, about the possible problems, we decided the risk was minimal and I couldnt keep my wife from going to see her family after being here for 6 months...

I'm sorry I meant to reply to the original poster. LOL I am glad everything worked out for you.

[Rebecca Jo 1,962]

Oh wow.

That's really bad form to suggest someone might be able to use AP if they are out of status, and get back into the US. That could have such disastrous results for a couple.

Every day, hundreds of aliens are admitted to the United States on Advance Parole and successfully adjust their status. But Advance Parole has a very weird definition in the law, and it should be used carefully. Because of its uniqueness, it can't be used to supersede a previous overstay.

http://cyrusmehta.blogspot.com/2010/11/spirit-is-at-airport-but-flesh-is-in.html

"To make the issue somewhat more understandable to nonlawyers, the author of this posting sometimes explains to clients that in effect their spirit has remained at the airport, and only their body has been allowed into the United States. They may think that they have been allowed into the United States, but actually they have only been allowed to physically wander around the country while DHS decides whether they should in fact be let in."

[SuperDuper! 230]

Make no mistake. Many here will tell you, "There's NO deadline to file for AOS, so just do it when you can, whenever."

BAD ADVICE.

Instead, the petitioner MUST save up enough $$$ ahead to get you through the AOS PROCESS ASAP, so you are free to travel.

If a petitioner did not plan ahead to have enough $$$ for the AOS, then he failed to plan, and I don't want to think how the rest of his life turns out.

Well, good luck, and do the AOS ASAP and forge ahead in life. Congratz.

[kennym 275]

Oh wow.

That's really bad form to suggest someone might be able to use AP if they are out of status, and get back into the US. That could have such disastrous results for a couple.

Hello RJ, Hope all is well..

Where did anybody say it's ok to use AP if they're out of status? We are responding to the questions the OP Raised...

Remeber, she's a K1 beneficiary who followed the requirements of the K1, with a 1-94 that is expired, by only a few days...

Kenny

Edited October 20, 2011 by kennym

[kennym 275]

Make no mistake. Many here will tell you, "There's NO deadline to file for AOS, so just do it when you can, whenever."

BAD ADVICE.

Instead, the petitioner MUST save up enough $$$ ahead to get you through the AOS PROCESS ASAP, so you are free to travel.

If a petitioner did not plan ahead to have enough $$$ for the AOS, then he failed to plan, and I don't want to think how the rest of his life turns out.

Well, good luck, and do the AOS ASAP and forge ahead in life. Congratz.

Things dont always go as planned...

Yes, It's best to get AOS Package done prior to the 90 days, as you say.. But not a requirement...

If it's your requirement, then by all means, you can get it done, bit dont make up rules,

There is a saying...

Life is what happens when you're busy making plans..

Edited October 20, 2011 by kennym

[Rebecca Jo 1,962]

Hello RJ, Hope all is well..

Where did anybody say it's ok to use AP if they're out of status? We are responding to the questions the OP Raised...

Remeber, she's a K1 beneficiary who followed the requirements of the K1, with a 1-94 that is expired, by only a few days...

Kenny

A K1 entrant whose I-94 has expired and who has not filed an application to adjust status is an out of status alien.

It doesn't matter if it's "only a few days".

[Rebecca Jo 1,962]

Things dont always go as planned...

Yes, It's best to get AOS Package done prior to the 90 days, as you say.. But not a requirement...

If it's your requirement, then by all means, you can get it done, bit dont make up rules,

There is a saying...

Life is what happens when you're busy making plans..

No it's not a rule to file within 90 days.

But it's a risk to file outside of 90 days.

Any gap in time between expiry of the I-94 and the NOA date for a status adjustment is out of status time. An alien who files within the 90 day window accrues no out of status time. Filing within the 90 day window displays an effort to stay "completely legal" on the part of the alien. It is a preferable legal position for any alien to be in who is not yet a permanent resident. It is always wise to remember that overstay time is not forgiven unless the status adjustment is otherwise approved.

[kennym 275]

No it's not a rule to file within 90 days.

But it's a risk to file outside of 90 days.

Any gap in time between expiry of the I-94 and the NOA date for a status adjustment is out of status time. An alien who files within the 90 day window accrues no out of status time. Filing within the 90 day window displays an effort to stay "completely legal" on the part of the alien. It is a preferable legal position for any alien to be in who is not yet a permanent resident. It is always wise to remember that overstay time is not forgiven unless the status adjustment is otherwise approved.

It's always good to have these discussions..

My understanding is that the only requirement is to be married within 90 days.. The AOS has no specific requirement.. Countless people file thier AOS after the 90 day period and get thier AP Card and Use it with no issue..

My wife and I did it after we asked the question here on VJ about the risks.. The replies were faily consistent that the risk was minimal to none, and we found that to be true.. As I said, before, My wife left after receiving her AP, and carried the NOA-1 for the I-485 as well as the AP Card, and the marriage certificate..

There were no hassles returning... As you know, overstays are forgiven for spouses of US Citizens, so generally, if the AOS app is pending, there is no issue..

I also live on the US/Mexico Border, and we have check points along the Highways.. We often drove through those checkpoints and always carried all the pertinent docs with us.. Never had any issues.. My wife had no issue returning to the US.. And from others here on VJ, many had no issues with AP after the 90 period... In fact, I beleive that's what it's used for.. while waiting for the GC, it allows you to travel...

The only issue is, if your I-485 is denied while out of the country, then you're screwed..

[Rebecca Jo 1,962]

It's always good to have these discussions..

My understanding is that the only requirement is to be married within 90 days.. The AOS has no specific requirement.. Countless people file thier AOS after the 90 day period and get thier AP Card and Use it with no issue..

My wife and I did it after we asked the question here on VJ about the risks.. The replies were faily consistent that the risk was minimal to none, and we found that to be true.. As I said, before, My wife left after receiving her AP, and carried the NOA-1 for the I-485 as well as the AP Card, and the marriage certificate..

There were no hassles returning... As you know, overstays are forgiven for spouses of US Citizens, so generally, if the AOS app is pending, there is no issue..

I also live on the US/Mexico Border, and we have check points along the Highways.. We often drove through those checkpoints and always carried all the pertinent docs with us.. Never had any issues.. My wife had no issue returning to the US.. And from others here on VJ, many had no issues with AP after the 90 period... In fact, I beleive that's what it's used for.. while waiting for the GC, it allows you to travel...

The only issue is, if your I-485 is denied while out of the country, then you're screwed..

*shrugs*

Yes it's good to have these discussions because it's helpful to understand things. And one thing to understand is this - out of status means out of status. There's no legal difference in the term based upon the class of entry of the alien. Out of status aliens who apply for adjustment can't be removed while their case is being adjudicated, so they are safe as long as they do not leave the country. But if they leave the country they risk being denied entry upon return because it can be construed they abandoned their case by virtue of leaving. USCIS will give anyone Advance Parole but it does not mean it should be used. A K1 entrant who hesitates to file outside the expiry of the I94 is unfortunately just as out of status as someone who has been under the radar for years.

It's fortunate your wife was re-admitted, but I think it was clever of the officer to parole her rather than admit her with her greencard. She left before her case was adjudicated and had an overstay. The paroled entry therefore reflect her immigration record perfectly. He knew if it ever came up that he really should not have let her in, that the overstay still shows. Smart dude.

[sassyclassy 0]

everyone has a very interesting view on this regard. its very good to know the pros and cons. again, many thanks!

[ceadsearc 516]

There is no law that says AOS must be filed within 90 days. However, any time between when the I-94 expires and when the NOA1 received is out of status time. If the AOS paperwork is filed close to the 90 day mark, that time will be minimal. As such, using AP will probably not be an issue. If the time period is 180 days or more, then it is large enough to trigger a ban. Now, if someone gets "caught" out-of-status at this time, they're most likely just going to be told to go file their paperwork. But if they leave the country, they're not going to be able to return regardless of whether or not they have AP. These reasons are why it is preferable to file within the 90 days or as close to it as possible, but as long as the AOS is otherwise approved it is unlikely that an immigrant will have long-term problems from waiting to file.

[Rebecca Jo 1,962]

There is no law that says AOS must be filed within 90 days. However, any time between when the I-94 expires and when the NOA1 received is out of status time. If the AOS paperwork is filed close to the 90 day mark, that time will be minimal. As such, using AP will probably not be an issue. If the time period is 180 days or more, then it is large enough to trigger a ban. Now, if someone gets "caught" out-of-status at this time, they're most likely just going to be told to go file their paperwork. But if they leave the country, they're not going to be able to return regardless of whether or not they have AP. These reasons are why it is preferable to file within the 90 days or as close to it as possible, but as long as the AOS is otherwise approved it is unlikely that an immigrant will have long-term problems from waiting to file.

I think you'd agree that it's those niggly little words like "probably" and "unlikely" that can catch people up.

[MochiKamo 93]

As far as using AP while out of status, the following applies. If you didn't accumulate at least 180 days of unlawful presence then you will be OK with an AP. There will be no difference between overstaying 1 day and 179 days. After 180 days, its an entirely different story.

[KayDeeCee 4,893]

No, AP is not useless after the I-94 has expired. AP is advance permission to be paroled back into the US. The only time it's useless is if the alien will trigger a ban when they leave. The advance parole becomes useless because the ban was triggered after the AP was approved. There are specific warnings about this in the AP application.

The OP hasn't accrued enough overstay to trigger a ban. If she get's her AOS application submitted soon then she'll stop accumulating unlawful presence. She shouldn't have any problem using the AP.

^^^ This.

No it won't. I'm sorry but you're confused. The OP's I-94 expired YESTERDAY. She has NOT accrued enough overstay days to incur a ban and is perfectly fine to use AP and wouldn't be the first.

^^^ This.

As far as using AP while out of status, the following applies. If you didn't accumulate at least 180 days of unlawful presence then you will be OK with an AP. There will be no difference between overstaying 1 day and 179 days. After 180 days, its an entirely different story.

^^^ and This.

The requirement is to be married within the 90 days before your I-94 expires. You could get married on the last day your I-94 is valid, and the requirement is met. You would then not be able to file for AOS within that same 90 day window, and are not required to. You can file for and use AP, if you filed for AOS a little bit after the I-94 expired. People do so all the time. Filing for AOS places you in a period of authorized stay. AP is only completely useless, and not to be attempted at all, if you have been out of status for 180 days or longer. That will trigger your ban from entry into the US, and AP cannot help anyone with that mess..as stated in the I-131 instructions, Page 3, #3- Advance Parole Document: http://www.uscis.gov/files/form/i-131instr.pdf

[kennym 275]

*shrugs*

Yes it's good to have these discussions because it's helpful to understand things. And one thing to understand is this - out of status means out of status. There's no legal difference in the term based upon the class of entry of the alien. Out of status aliens who apply for adjustment can't be removed while their case is being adjudicated, so they are safe as long as they do not leave the country. But if they leave the country they risk being denied entry upon return because it can be construed they abandoned their case by virtue of leaving. USCIS will give anyone Advance Parole but it does not mean it should be used. A K1 entrant who hesitates to file outside the expiry of the I94 is unfortunately just as out of status as someone who has been under the radar for years.

It's fortunate your wife was re-admitted, but I think it was clever of the officer to parole her rather than admit her with her greencard. She left before her case was adjudicated and had an overstay. The paroled entry therefore reflect her immigration record perfectly. He knew if it ever came up that he really should not have let her in, that the overstay still shows. Smart dude.

I dont see that in practice.. And I am not quiet sure it's correct, simply because the CBP doesnt seem to consider that OOS time as pertinent if you have a AOS in progress.. That is supported by the fact that so many people have filed AOS after the 90 day period and still been allowed to travel and return using AP..

It happened to us, and it seems that other VJ members also had the same experience.. Was I worried when my wife was gone? Yes I was.. Simply not knowing what things might complicate the AOS app.. As you know if the I-485 is denied while you're out of the country, you're screwed.. However, most peopl know if they're are any potential problems with the AOS before they file it, and if they deny, likely your spouse will be deported anyway...

So, do we use the evidence from the experience of many VJ Members, as well as our personal experiences, or do we consider your ideas as gospel.. I will say this, it's interesting you take the safe stand in this subject, but when it came to our last discussion, all the evidense in the world regarding change of address wouldnt persuade you about that rule.. I am starting to wonder if you just want to argue... Ok, maybe not...

Anyhow, these conversations whether legit or not, is always a great discussion and we all learn a lot from them...

Kenny