K3 expiration before filing AOS

[ML1982 0]

My wife entered the US two years ago with a valid K3 visa. 5 months after she arrived I deployed to Afghanistan. While deployed, my wife lived with my parents. She was pregnant and gave birth to our son in the middle of my deployment.

I arrived back home in October. We should have filed for AOS then, but my job in the Army kept me very busy, we had to get her vaccinations up to date, and there were some financial setbacks that kept us from filing sooner.. My wife's visa expired on the 15th of March and her passport is expired as well.

I have made an appointment with a civil surgeon to complete her medical exam but they only do appointments 1 month out. At this point it looks like we will be filing for AOS about two or three months late..

I am very distraught and I cannot help but think that I have let her down. I love her very much and it is not her fault that things havent worked out the way we had hoped... What is her status now, between the visa expiration and the day they recieve our I-485? Will they even accept it so late? Can we still apply for AOS?? Will there be any legal penalties for her? How do I explain our delay in filing?

I am worried sick. I don't want anything bad to happen to my sweet wife, or have our family split up. If anybody has any good advice it would be grately appreciated.

[Darnell 8,479]

i suggest you file the I-130 with the I-485, as the K-3 visa has expired.

I know you've filed an I-130 before, but ....

technically, she's out of status between the time her K-3 visa expires and the receipt date of the I-485.

[ML1982 0]

i suggest you file the I-130 with the I-485, as the K-3 visa has expired.

I know you've filed an I-130 before, but ....

technically, she's out of status between the time her K-3 visa expires and the receipt date of the I-485.

So, once they receive the I-130 and I-485 she will no longer be out of status? Will we receive notice of this? Will her expired visa and our delay in filing affect their decision to approve the AOS?

[Darnell 8,479]

yes, it will affect their decision.

TO help 'counter' their decision, please to write up a letter detailing your time and timings for being out of country with the US Military.

[ML1982 0]

yes, it will affect their decision.

TO help 'counter' their decision, please to write up a letter detailing your time and timings for being out of country with the US Military.

Thanks for the help. Will she be required to leave the United States to file for another I-130? Could she be deported??

[Deputy Purple 1,294]

i suggest you file the I-130 with the I-485, as the K-3 visa has expired.

I know you've filed an I-130 before, but ....

technically, she's out of status between the time her K-3 visa expires and the receipt date of the I-485.

But I thought that an approved I-130 doesn't expire?

@OP, unless you live somewhere that is heavily patrolled by CBP or has a lot of checkpoints there is little chance of her being picked-up and detained. If she is then she'd go before an Immigration Judge who would release her because she has a valid path to AOS through her marriage to you. It would be a financial hit which sucks but the chances of her getting deported are slim to none.

To get her passport renewed she needs to contact her home country's consulate. She will need valid Government Issued ID for the AOS process.

[Harpa Timsah 13,258]

Yes, how is this different from an overstayed K-1 case? Overstay is forgiven for spouses of USCs so there is no problem. They have filed I-130 for the K-3 so I don't see why they need another one. The wife cannot travel or use AP, but she won't get deported. The absolute worst is that she gets detained and ordered to file AOS.

[ML1982 0]

But I thought that an approved I-130 doesn't expire?

@OP, unless you live somewhere that is heavily patrolled by CBP or has a lot of checkpoints there is little chance of her being picked-up and detained. If she is then she'd go before an Immigration Judge who would release her because she has a valid path to AOS through her marriage to you. It would be a financial hit which sucks but the chances of her getting deported are slim to none.

To get her passport renewed she needs to contact her home country's consulate. She will need valid Government Issued ID for the AOS process.

Thanks, this puts me at ease a little bit. The money isn't an issue at this point, as long as we are not separated. If she were deported or incarcerated I would just die.

Edit: I made a slight error. I misread her passport and realized that it does not expire until January of 2013. So we are clear in that respect.

My wife's I-94 expires on April 5th, but I think we are too close to that date to file for an extension. I wish I had learned about this sooner. I never knew that we could do that.

When detailing the reasons for such a long delay in our AOS filing, would it be unwise to mention that one of the reasons was financial? I ask this because they do require an affidavit of support, and I was thinking that admitting to financial difficulties would look bad on our part.

I am considering hiring an immigration attorney to help us. Do you think this would be a wise decision considering the circumstances?

Edited March 20, 2012 by ML1982

[Harpa Timsah 13,258]

She will need valid Government Issued ID for the AOS process.

This is incorrect. Your wife does not need a valid ID to go through the AOS process. Her expired passport is fine. People apply with expired passports all of the time (think long overstaying people... some countries won't allow one to renew if one does not have legal status in the US - so, they only have an old expired passport).

They are not going to ask why you went so long without applying - they don't care.

OP - If her I-94 expires in April, then you can get your AOS package out in time with zero days of overstay. I would find a different Civil Surgeon that has quicker available appointments and send off the package next week.

Edited March 20, 2012 by Harpa Timsah

[Deputy Purple 1,294]

This is incorrect. Your wife does not need a valid ID to go through the AOS process. Her expired passport is fine. People apply with expired passports all of the time (think long overstaying people... some countries won't allow one to renew if one does not have legal status in the US - so, they only have an old expired passport).

That's a good bit of info to have on hand, that you for adding to my knowledge base.

[Deputy Purple 1,294]

Thanks, this puts me at ease a little bit. The money isn't an issue at this point, as long as we are not separated. If she were deported or incarcerated I would just die.

That's the best attitude to have for this. I hate it when I see people ore worried about the cost than their partner.

My wife's I-94 expires on April 5th, but I think we are too close to that date to file for an extension. I wish I had learned about this sooner. I never knew that we could do that.

Unless she's planning to travel internationally soon a little overstay won't hurt her and will be forgiven once she's AOSed.

When detailing the reasons for such a long delay in our AOS filing, would it be unwise to mention that one of the reasons was financial? I ask this because they do require an affidavit of support, and I was thinking that admitting to financial difficulties would look bad on our part.

There is no need to explain it. The K-3 doesn't require AOS within a certain time-frame. If you were talking about ROC then you would have to explain a late filing but at this point she'll be issued a 10 Greencard so no ROC required.

I am considering hiring an immigration attorney to help us. Do you think this would be a wise decision considering the circumstances?

All an Attorney will do fro you is lighten your wallet.

[ML1982 0]

Thanks to everyone for all of the input. I was really scared and thought we were in a terribly dire situation, but you all helped put it into perspective. My wife means the world to me. Out of the three years we have been married, we have been separated for almost two: The initial time apart while I was in the States and she was getting her K-3, and our latest separation due to my deployment to Afghanistan. I can't stand to spend any more time away from her.

I am going to try to find a civil surgeon that will do an appointment sooner so that we can mail in the AOS paperwork before my wife's I-94 expires, but I am happy to know that if it isn't possible and we file a little late, the AOS will still be considered.

I am glad I found this place and will direct any other questions I have to this board instead of hiring an attorney. A majority of the people here seem to have a lot of knowledge and experience in the subject.

If anyone can think of anything else that might help in my situation, please let me know. Thanks everyone.