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

[Rebecca Jo 1,962]

^^^ This.

^^^ This.

^^^ 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

It all seems so clear, doesn't it?

Yes, if you are a K1 entrant, you are required to marry within 90 days to your USC petitioner IF you wish to adjust status in the US via marriage. Yes you can do this on the 90th day.

No, you don't have to file to adjust your status within 90 days of your entry.

Yes, you can travel on AP and likely be admitted if you have less than 180 days out of status, provided you still have a pending adjustment of status.

You can do all these things, and likely be OK.

But yes, you are also out of status if you file outside the I94 and have no receipt to prove status adjustment. That's just a simple fact. It is a simple fact that out of status time is forgiven to spouses of USC's, but it's not just a fine legal principal that it is NOT forgiven until the ENTIRETY of the case is approved. The same concept applies to illegal employment.

My contention is it is better not to wait to file to adjust outside of 90 days. It is better to have no out of status time at all. It preserves the integrity of the case less something go south with it. And sometimes things do go wrong - an interview notice lost in the mail; RFE documents never catching up to the main file, etc. These things may be rare, but they do happen.

My personal contention also would be to never use Advance Parole, even if there is no out of status time. Paroled entry is legally different than admission granted with a visa or the VWP. The alien's legal footing in the US is simply not as secure if paroled. It may be a very fine legal line, but it exists nonetheless.

To Kenny, I misspoke earlier when I referred to your wife's few days as "overstay", or at least "overstay" as is the vernacular here on VJ - meaning more than 180 days past expiration of the current I94. (Except in the case of VWP adjustees, wherein the VJ mob is eager to call them "overstayers" if they are in the US one day past 90). A thoughtful analysis of this dichotomy is worthy if one really wishes to understand what legal status means.

[Rebecca Jo 1,962]

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

Kenny - I think the evidence in our last discussion was the other way around, but ....well just "whatever" is all I have to say about that.

I'd also like to say that I have more faith in the Service than to assume immediate deportation. But those are times when legal counsel is required, and beyond the scope of discussion here.

[Krikit 1,164]

Just a point of clarification. The term is not "out of status". The term is a "K-1 non-immigrant pending adjustment to permanent resident".

[Rebecca Jo 1,962]

Just a point of clarification. The term is not "out of status". The term is a "K-1 non-immigrant pending adjustment to permanent resident".

There is no such legal term as "K1 non immigrant pending adjustment to permanent resident". That would be the situation that particular alien is in.

"Out of status" as I was using the term refers to the time between I94 expiry and receipt of the I485.

[Krikit 1,164]

If you have been admitted into the US as a K-1 non-immigrant then you remain a K-1 non-immigrant until such time as you have been given immigrant status (AOS). You are never out of status unless you do not meet the terms of the visa.... which are to marry the petitioner within 90 days. There is no legal requirement to adjust status following the marriage, ergo there is no such thing as being "out" of status. But I do understand your use of the term as you explained it.

[Rebecca Jo 1,962]

If you have been admitted into the US as a K-1 non-immigrant then you remain a K-1 non-immigrant until such time as you have been given immigrant status (AOS). You are never out of status unless you do not meet the terms of the visa.... which are to marry the petitioner within 90 days. There is no legal requirement to adjust status following the marriage, ergo there is no such thing as being "out" of status. But I do understand your use of the term as you explained it.

I'm sorry Krikit but that's inaccurate.

I always like to go to BritishExpats.com when I get confused about something. I especially look for the posts of Folinsky, an immigration lawyer in California.

Here's a thread regarding traveling with less than 180 days of "overstay". The pertinent post of Folinsky is Post #6.

http://britishexpats.com/forum/showthread.php?t=589580&highlight=I+94+expired+K1

And this one talks about an alien awaiting status adjustment (Post #19)

http://britishexpats.com/forum/showthread.php?t=307367&highlight=PRUCOL

Edited October 21, 2011 by Rebecca Jo

[VanessaTony 3,567]

If you have been admitted into the US as a K-1 non-immigrant then you remain a K-1 non-immigrant until such time as you have been given immigrant status (AOS). You are never out of status unless you do not meet the terms of the visa.... which are to marry the petitioner within 90 days. There is no legal requirement to adjust status following the marriage, ergo there is no such thing as being "out" of status. But I do understand your use of the term as you explained it.

I'm sorry but you're wrong. The K1 visa is valid for 90 days. Marriage does NOTHING to your status except giving you the ability to adjust status based on that. They are out-of-status the day after their I-94 expires. If they weren't then they wouldn't incur a ban when leaving (before adjusting status) having stayed more than 180 days.

They are also not "pending" adjustment of status until they actually APPLY for adjustment of status. They are an out-of-status K1 visa holder. Once they apply for AOS they're AOS pending and in a period of authorised stay.