What's the time limit for filing AOS

[Que Saudade 284]

No. If your I-94 has been expired for 180 days more, you will trigger a ban if you leave the US. You will not be able to re-enter using AP. If you are filing for AOS that long after the I-94 is expired, then do not even bother to file for AP. They will give it to you, but it will not be able to get you back in and you will be stuck outside the US in need of a spousal visa to get back. It warns about it on the I-131 instructions even.

Could you be a little more specific? Why would they grant AP if they already know that I-94 expired 180+ days if you can't get back in? No one would use AP while the I-94 is valid because it takes more time to approve than the I-94 is valid. To recap, in essence you are saying that the USCIS approves an AP to be re-admitted but that it is invalid?

Thanks..

[KayDeeCee 4,893]

Could you be a little more specific? Why would they grant AP if they already know that I-94 expired 180+ days if you can't get back in? No one would use AP while the I-94 is valid because it takes more time to approve than the I-94 is valid. To recap, in essence you are saying that the USCIS approves an AP to be re-admitted but that it is invalid?

Thanks..

You had to overstay by at least 180 days to trigger a ban of 3 years, and over a year to trigger a ban of 10 years. If your I-94 was expired for 180 days or more before you file for AOS/EAD/AP, then yes, the AP will be given, but NO, you should NOT use it. It warns about it in the I-131 instructions even. Read through #3) Advance Parole Document.

The AP is not invalid. You are eligible for it, and if you apply for it, it will be granted. It is up to you to keep track of your current status and any overstay you might have accumulated. If you overstay 180 days or more, you will trigger an automatic ban, and AP cannot be used to re-enter when you have a ban.

If you have not accumulated that many days of overstay, then there will be no ban trigger and AP can be used to re-enter.

[Que Saudade 284]

You had to overstay by at least 180 days to trigger a ban of 3 years, and over a year to trigger a ban of 10 years. If your I-94 was expired for 180 days or more before you file for AOS/EAD/AP, then yes, the AP will be given, but NO, you should NOT use it. It warns about it in the I-131 instructions even. Read through #3) Advance Parole Document.

The AP is not invalid. You are eligible for it, and if you apply for it, it will be granted. It is up to you to keep track of your current status and any overstay you might have accumulated. If you overstay 180 days or more, you will trigger an automatic ban, and AP cannot be used to re-enter when you have a ban.

If you have not accumulated that many days of overstay, then there will be no ban trigger and AP can be used to re-enter.

I am going to have to get a 2nd opinion on this. By your reference above to read the instructions (which I have repeatedly), it clearly states that the ban for the 180+ days is due to "unlawful presence", not an expired I-94 from a person who "lawfully" entered under a K1 Visa with the clear intent to immigrate. The instructions that give the warning also clearly defines "unlawful presence" as "being in the United States without having been inspected and admitted or paroled, or after the period of authorized stay has expired". A K1 Visa applicant that enters the US has been inspected and admitted lawfully, the K1 immediately expires upon entrance, and once the applicant legally marries within the specified 90 day timeframe, the applicant has fulfilled all lawful obligations therefore completely not an "unlawful presence". It goes further to state that a properly "filed" (not approved) I-485 may place you in a period of authorized stay. I reiterate that in instruction 5 it states again about the unlawful presence more than 180 days. A K1 Visa applicant clearly enters lawfully and if married within 90 days has fulfilled the lawful obligation. Please point out to me in the K1 instructions and/or the I-485 that the K1 Visa applicant HAS a clearly defined timeframe to file AOS or that they are unlawfully present if not filed by "X" date. The applicant obviously has entered the US lawfully with the clear intent to immigrate.

P.S. I will digress to say that if a K1 applicant enters and does NOT get married within 90 days is clearly here unlawfully after day 90. It is not a coincidence that the I-94 is valid for 90 days for the K1 applicant upon entry.

Edited May 19, 2012 by John & Mari

[JimVaPhuong 4,863]

I am going to have to get a 2nd opinion on this. By your reference above to read the instructions (which I have repeatedly), it clearly states that the ban for the 180+ days is due to "unlawful presence", not an expired I-94 from a person who "lawfully" entered under a K1 Visa with the clear intent to immigrate. The instructions that give the warning also clearly defines "unlawful presence" as "being in the United States without having been inspected and admitted or paroled, or after the period of authorized stay has expired". A K1 Visa applicant that enters the US has been inspected and admitted lawfully, the K1 immediately expires upon entrance, and once the applicant legally marries within the specified 90 day timeframe, the applicant has fulfilled all lawful obligations therefore completely not an "unlawful presence". It goes further to state that a properly "filed" (not approved) I-485 may place you in a period of authorized stay. I reiterate that in instruction 5 it states again about the unlawful presence more than 180 days. A K1 Visa applicant clearly enters lawfully and if married within 90 days has fulfilled the lawful obligation. Please point out to me in the K1 instructions and/or the I-485 that the K1 Visa applicant HAS a clearly defined timeframe to file AOS or that they are unlawfully present if not filed by "X" date. The applicant obviously has entered the US lawfully with the clear intent to immigrate.

P.S. I will digress to say that if a K1 applicant enters and does NOT get married within 90 days is clearly here unlawfully after day 90. It is not a coincidence that the I-94 is valid for 90 days for the K1 applicant upon entry.

The I-94 determines when a K1's lawful presence expires. If they haven't been granted some form of lawful presence or authorized stay before the I-94 expires then they being to accrue unlawful presence.

There is no legal requirement that a K1 get married. A K1 can come to the US, stay up to 90 days without getting married, and then leave, and they will not have violated any immigration laws. However, they aren't eligible to apply for adjustment of status based on the I-129F petition unless they married the petitioner within 90 days. If they marry the petitioner after 90 days then they are still eligible to adjust status, but not based on the I-192F petition - the US citizen spouse would need to submit an I-130 petition for them. If they marry anyone other than the I-129F petitioner then they can't adjust status. This all has to do with their eligibility to adjust status based on their admission category. It has nothing to do with unlawful presence.

USCIS will grant AP for pretty much any K1, even if they've overstayed for a very long time. They don't have the legal authority to deny AP based on the overstay because overstay isn't a relevant factor for someone adjusting status based on being an immediate relative of a US citizen. However, if a K1 (or anyone else) has accumulated 180 days or more of unlawful presence then they will become inadmissible on the day they leave the United States because of their accumulated unlawful presence. The AP they were granted becomes effectively useless - they can't reenter the United States.

The key factor here is that they weren't inadmissible yet when the AP was granted. They became inadmissible when they left the US with more than 180 days of accrued unlawful presence, and incurred the 3 year ban.

There are multiple warnings about this situation in the I-131 instructions.

[Que Saudade 284]

So, if the I-485/AP/EAD is filed after 180+ days and is pending, the applicant should not travel outside of the US until they receive their conditional status? (green Card) Would this still apply once the I-485 application is approved?

[KayDeeCee 4,893]

I am going to have to get a 2nd opinion on this. By your reference above to read the instructions (which I have repeatedly), it clearly states that the ban for the 180+ days is due to "unlawful presence", not an expired I-94 from a person who "lawfully" entered under a K1 Visa with the clear intent to immigrate. The instructions that give the warning also clearly defines "unlawful presence" as "being in the United States without having been inspected and admitted or paroled, or after the period of authorized stay has expired". A K1 Visa applicant that enters the US has been inspected and admitted lawfully, the K1 immediately expires upon entrance, and once the applicant legally marries within the specified 90 day timeframe, the applicant has fulfilled all lawful obligations therefore completely not an "unlawful presence". It goes further to state that a properly "filed" (not approved) I-485 may place you in a period of authorized stay. I reiterate that in instruction 5 it states again about the unlawful presence more than 180 days. A K1 Visa applicant clearly enters lawfully and if married within 90 days has fulfilled the lawful obligation. Please point out to me in the K1 instructions and/or the I-485 that the K1 Visa applicant HAS a clearly defined timeframe to file AOS or that they are unlawfully present if not filed by "X" date. The applicant obviously has entered the US lawfully with the clear intent to immigrate.

P.S. I will digress to say that if a K1 applicant enters and does NOT get married within 90 days is clearly here unlawfully after day 90. It is not a coincidence that the I-94 is valid for 90 days for the K1 applicant upon entry.

If you overstay your I-94 then you begin to have unlawful presence. Yes, a K-1 enters lawfully. Marrying in the 90 days only satisfies the requirement of the K-1 visa and allows them to adjust status based on that marriage to their USC petitioner/spouse.

There is no time frame or deadline to file for AOS. However, you will be out of status and accruing unlawful presence after your I-94 expires. When you file for AOS, you then enter a period of authorized stay and the overstay clock stops ticking. When your green card is approved, the overstay does matter any longer.

Since this has been discussed many times before on VJ, it would be easier to just post links to some posts by JimVaPhuong. You can read those and all through the entire thread if you wish.

http://www.visajourney.com/forums/topic/339219-avance-parole-am-i-worrying-my-wife-needlessly/page__p__5014303#entry5014303

http://www.visajourney.com/forums/topic/339219-avance-parole-am-i-worrying-my-wife-needlessly/page__st__15__p__5015440#entry5015440

Ahh, no need to link his posts, JimVaPhuong answered before me.

Edited May 19, 2012 by Jay-Kay

[KayDeeCee 4,893]

So, if the I-485/AP/EAD is filed after 180+ days and is pending, the applicant should not travel outside of the US until they receive their conditional status? (green Card) Would this still apply once the I-485 application is approved?

Correct. Once it is approved you will receive the conditional green card, and the EAD/AP is no longer valid anyway. You use the green card to re-enter the US as a legal permanent resident. The overstay will no longer matter.

[Que Saudade 284]

Thanks for all of the input. It is extremely appreciated!!

[rehtse 1]

Is there any fine or penalty that we need to pay aside from $1070 when we process AOS after the expiration of I-94?

[KayDeeCee 4,893]

Is there any fine or penalty that we need to pay aside from $1070 when we process AOS after the expiration of I-94?

No. The only time you would need to pay extra is if your medical is over a year old, then you would need to see a CS and pay to have a new one done. Also, for those who wait 2 years or longer after their I-94 is expired, they should go ahead and file the I-130 and pay the fee for that form to go along with their I-485 so they get a 10 year card. There is no deadline to file for AOS, so there are no penalties or fines for waiting.

[TnJ 131]

What if a person comes over on a K-1, marries USC and NEVER files AOS. Do they only incur a ban after the I-94+180days if they leave the country? What if they stay in the country? I understand that they will not be able to work and take part and all of that, but when does it truly become unlawful for a K-1 immigrant to stay if there is no deadline to file AOS? Sure, it is unlawful presence after I-94 expires. Okay then, the advice given is to file AOS as soon as possible so where is the point of no return so to speak?