AOS status

[SapphireDreams 71]

Expect to wait approx. 3 months for the EAD and AP and then around 6 months for the actual green card.

Once you get the EAD/AP, you can work and travel.

[nycheryl 0]

If she does not have accumulated 180 days of overstay, she can travel with her AP once she gets it.

Can you please explain this? Could someone under "normal" circumstances (applying for AOS right away after marriage) overstay?

[SF2007 48]

Not unless the fiancé(e) overstayed a previous visa. When you file for AOS from a K1, you enter a phase of authorized stay. If you travel abroad with your AP, it would be wise to also have on hand a copy of your marriage certificate and USCIS's NOAs.

If you do have accumulated 180 days+ of overstay, the AP does not relieve you for being unlawfully present in the U.S. Leaving will then trigger a ban, AP or not. The Green Card however clears you of that and overstay would no longer be an issue once you have your GC. If you want the whole details, see page 3 of Instructions for Form I-131.

[pocheros 101]

Just to double check- if you enter the US on a K1 visa and get married within 90 days, there is no time limit for AOS, right? I'm asking because with my hubby's unemployment I'm coming up on 6 months of living here and it could be quite awhile before I apply for AOS.

[Megusi 0]

Just to double check- if you enter the US on a K1 visa and get married within 90 days, there is no time limit for AOS, right? I'm asking because with my hubby's unemployment I'm coming up on 6 months of living here and it could be quite awhile before I apply for AOS.

I'm not an expert, but I don't think that's correct.

I'm pulling this from a summary of regulation from the USCIS website here.

If you entered the United States as a fiancé(e) of a U.S. citizen (K-1), child of a fiancée of a U.S. citizen (K-2), or the spouse or child of a U.S. citizen (K-3 or K-4) you will have to file for adjustment of status in order to get your green card and to remain legally in the United States.

emphasis mine

You should apply for adjustment as soon as you marry your fiancé(e). By law and regulations, you are required to marry the U.S. citizen who petitioned for you within 90 days of your admission to the United States in K-1 status. If you fail to marry, you will become removable from the United States and cannot adjust through any other means.

Obviously you got married, and I'm not sure if your status as a K1 expires as soon as you're married or at the expiration of 90 days. Regardless, it appears like you might be beyond your period of authorized stay. You should probably file ASAP.

[Kathryn41 3,205]

Just to double check- if you enter the US on a K1 visa and get married within 90 days, there is no time limit for AOS, right? I'm asking because with my hubby's unemployment I'm coming up on 6 months of living here and it could be quite awhile before I apply for AOS.

There is no time limit on when you can apply for the AOS, however, just because you got married within the 90 days, it does not mean you are now free and clear. The K-1 visa is permission to enter the US in order to get married within 90 days. Getting married within 90 days allows you to apply for permission to remain in the US (green card) based upon satisfying the requirement of the K-1 visa - getting married within 90 days.

When you 'used' the visa to cross the border, your status was next established by your I-94 visa. The K-1 authorized the entry; the I-94 authorized the 90 days stay. The I-94 is your basis of 'legal status' in the US. Once those 90 days expire - whether you married within those 90 days or not - you are out of status unless you file the additional paperwork to change your status from a non-immigrant fiancee to a permanent resident based upon marriage to a US citizen.

So, you start accumulating 'out of status' days once the I-94 expires and they will continue to accumulate until you file the AOS and it is accepted. Those out of status days remain on your immigration record until your AOS is approved. While it shouldn't cause you problems in the US (eg being stopped by immigration authorities) since you are eligible to apply for AOS you would not be deported but you would be told to apply for AOS right away, if you needed to leave the US it definitely would cause you problems. If you had accumulated more than 180 out of status days (that means after the I-94 expires) and you left the US - even with an Advance Parole (AP) - you would incur an automatic 3 year ban on re-entering the US. If you have more than a year of out of status days, that ban becomes 10 years. Your spouse would have to file a hardship waiver along with the I-130 and the whole CR-1 application process to allow you to return to the US.

So, while there is no legal requirement that you file for AOS within a specified period of time, it is in your own best interest that you do so as soon as you can in order to protect your status in the US, and to allow you the 'freedom' of working and being able to travel out of the US - and return safely. You don't want to be faced with the hard choice of whether you go back home to deal with a family emergency (eg, the death or serious illness of a family member) and face starting the whole immigration process all over again with a hardship waiver that may not be approved and then having to wait out the 3 or 10 year ban, or giving up the chance perhaps to say goodbye to a parent or a sibling because you know you cannot leave and return to the US because you have no status or you would incur a ban.

Filing for the AOS should be one of the highest priorities on your list right now, right behind basic survival needs of food and shelter. This is one of those situations where if you need to borrow money it would be a good investment. You could also get your EAD and that would give two of you looking for employment, doubling your changes.

Good luck.

Edited March 17, 2012 by Kathryn41

[pocheros 101]

There is no time limit on when you can apply for the AOS, however, just because you got married within the 90 days, it does not mean you are now free and clear. The K-1 visa is permission to enter the US in order to get married within 90 days. Getting married within 90 days allows you to apply for permission to remain in the US (green card) based upon satisfying the requirement of the K-1 visa - getting married within 90 days.

When you 'used' the visa to cross the border, your status was next established by your I-94 visa. The K-1 authorized the entry; the I-94 authorized the 90 days stay. The I-94 is your basis of 'legal status' in the US. Once those 90 days expire - whether you married within those 90 days or not - you are out of status unless you file the additional paperwork to change your status from a non-immigrant fiancee to a permanent resident based upon marriage to a US citizen.

So, you start accumulating 'out of status' days once the I-94 expires and they will continue to accumulate until you file the AOS and it is accepted. Those out of status days remain on your immigration record until your AOS is approved. While it shouldn't cause you problems in the US (eg being stopped by immigration authorities) since you are eligible to apply for AOS you would not be deported but you would be told to apply for AOS right away, if you needed to leave the US it definitely would cause you problems. If you had accumulated more than 180 out of status days (that means after the I-94 expires) and you left the US - even with an Advance Parole (AP) - you would incur an automatic 3 year ban on re-entering the US. If you have more than a year of out of status days, that ban becomes 10 years. Your spouse would have to file a hardship waiver along with the I-130 and the whole CR-1 application process to allow you to return to the US.

So, while there is no legal requirement that you file for AOS within a specified period of time, it is in your own best interest that you do so as soon as you can in order to protect your status in the US, and to allow you the 'freedom' of working and being able to travel out of the US - and return safely. You don't want to be faced with the hard choice of whether you go back home to deal with a family emergency (eg, the death or serious illness of a family member) and face starting the whole immigration process all over again with a hardship waiver that may not be approved and then having to wait out the 3 or 10 year ban, or giving up the chance perhaps to say goodbye to a parent or a sibling because you know you cannot leave and return to the US because you have no status or you would incur a ban.

Filing for the AOS should be one of the highest priorities on your list right now, right behind basic survival needs of food and shelter. This is one of those situations where if you need to borrow money it would be a good investment. You could also get your EAD and that would give two of you looking for employment, doubling your changes.

Good luck.

That is scary. What if I accumulate 180 out of status days but don't leave the US until I have my green card (not advance parole) will I still get a ban? Or does it just basically mean that I can't use AP if I have out of status days?

Thank you for the detailed response.

We both really want to apply for AOS but have had bad luck, and we don't have anyone who could co sponsor us. However, my hubby has a couple job interviews lined up so things are looking okay. We're at the point where he will take any job. Unfortunately Las Vegas has the highest unemployment in the country right now so I'm still worried and just wondering what would happen in the worst case scenario :X

Even if we had the filing fee ready I'm not sure if we could apply for AOS since the I-864 requires you to prove that your spouse or co sponsors can support you and currently my husband doesn't have a job nor enough assets to do so. Both his parents are unemployed and don't make above the poverty guideline and besides his parents there's really no one else.

Edited March 17, 2012 by pocheros

[pocheros 101]

If I understand correctly, upon my AOS being approved and the receipt of my green card it basically means i have nothing to worry about even if I was out of status for so long, right? That is as soon as I become a permanent resident I'm in the clear? Sorry I'm kind of freaking out here, and just want to be extra sure. I'm looking up some links on out of status days and it's kind of scary :X

[Kathryn41 3,205]

That is scary. What if I accumulate 180 out of status days but don't leave the US until I have my green card (not advance parole) will I still get a ban? Or does it just basically mean that I can't use AP if I have out of status days?

If you don't leave the US you will be fine. The ban only kicks in if you leave the US. If you accumulate over 180 out of status days basically it means you cannot use an AP. They will certainly give you one but the out of status days 'trump' the use of an AP so it is of no use to you. Once you get your green card, any out of status time is forgiven so you won't have to worry.

Thank you for the detailed response.

We both really want to apply for AOS but have had bad luck, and we don't have anyone who could co sponsor us. However, my hubby has a couple job interviews lined up so things are looking okay. We're at the point where he will take any job. Unfortunately Las Vegas has the highest unemployment in the country right now so I'm still worried and just wondering what would happen in the worst case scenario :X

Even if we had the filing fee ready I'm not sure if we could apply for AOS since the I-864 requires you to prove that your spouse or co sponsors can support you and currently my husband doesn't have a job nor enough assets to do so. Both his parents are unemployed and don't make above the poverty guideline and besides his parents there's really no one else.

That's a tough place in which to be. Hopefully one of those job interviews will bring in an offer of employment and the two of you can get back on track with both your immigration journey and your lives. Good luck to you both.

Edited March 17, 2012 by Kathryn41

[pocheros 101]

That's a tough place in which to be. Hopefully one of those job interviews will bring in an offer of employment and the two of you can get back on track with both your immigration journey and your lives. Good luck to you both.

*huge sigh of relief* I'm just glad that 1. I won't get deported 2. as soon as I have a green card I'm in the clear. Thank you for putting my mind at ease, and thank you for the well wishes.

Er, I have one more question, since you're so knowledgeable Do out of status days trump the EAD as well, or just the AP? Thanks again.

[Kathryn41 3,205]

*huge sigh of relief* I'm just glad that 1. I won't get deported 2. as soon as I have a green card I'm in the clear. Thank you for putting my mind at ease, and thank you for the well wishes.

Er, I have one more question, since you're so knowledgeable Do out of status days trump the EAD as well, or just the AP? Thanks again.

Once you get your EAD you are allowed to work even if you do have out of status days. The problems with the out of status days are when you are still out of status, or if you leave the US and try to return. You shouldn't have any problems with the EAD. Out of status days (as well as unauthorized work) are 'forgiven' when you obtain your green card. You are also allowed to get your green card even when you are out of status as long as you are married to a US citizen. That is the only category that allows AOS from an out of status state.

Edited March 17, 2012 by Kathryn41

[pocheros 101]

Once you get your EAD you are allowed to work even if you do have out of status days. The problems with the out of status days are when you are still out of status, or if you leave the US and try to return. You shouldn't have any problems with the EAD. Out of status days (as well as unauthorized work) are 'forgiven' when you obtain your green card. You are also allowed to get your green card even when you are out of status as long as you are married to a US citizen. That is the only category that allows AOS from an out of status state.

You are an angel. Thank you for help