Attempting AOS with Expired I-94

[TheMadMulatto 0]

My Fiance' (now Husband) came from England to the U.S. on a K1 Visa in May in this

and we were married in under 90 days.

We were told by three different folks at Home Land Security Customer Service that there was no deadline

involved in sending in our I-485; not the first time we were given in wrong information by HLS Representatives.

My Husband's I-94 expired November 9th so that means we are about 32 days Out-of-Status as far as I can tell

and NOT eligible to use the I-485.

I've been looking online all day and night hoping to find out what move to make next

since the I-485 appears to not be an option now.

I DID see one site where someone claimed that we are out-of-status and unable to file the I-485

ONLY IF we are beyond 180 days AFTER the I-94 expiration date.

I just wanna know what my options are... what's the right form at THIS stage?

Am I out of options and need a lawyer, now?

Should we just send in the I-485 anyway and maybe explain our reasons for lateness in a separate letter?

-Frustrated.

[Harpa Timsah 13,258]

There is no deadline to file AOS. File ASAP.

Here is the VJ guide: http://www.visajourney.com/content/k1k3aos

Edited December 18, 2012 by Harpa Timsah

[Enigma11561 336]

What Harpa said. Your ok,but file now.

Edited December 18, 2012 by Enigma11561

[Ontarkie 14,133]

~~~~Moved to Adjustment of Status (Green Card) from Family Based Visas, from Adjustment of Status Case Filing and Progress Reports as the OP is just starting and not updating~~~~

[didi&bebe 0]

I filed my AOS after my I-94 was expired. We got married Sept 4 and my J1 visa expired Sept 13. I had 1 month tourist extension till Oct 13 and we filed the papers Nov 19... so 36 days after the last day of my legal stay in USA. I already got my Boimetrics appointment letter which means that they didn't notice any delay. I am not 100% sure how it works with K1 visas but the case with overstaying the visa must be similar for all the visas!

[tru_loves_journey 117]

We didn't file AOS for 9 months after my husband arrived in the USA....Good Luck

Edited December 18, 2012 by tru_loves_journey

[Damian&Kelly 16]

We waited a year to file AOS, and had no problems at all. It was transferred to CSC and approved without interview.

[bigdog 376]

Get it filed, good luck.

[Brother Hesekiel 2,235]

Probably too much information for you here and now, but what the heck . . .

The sole requirement of the K-1 is that you guys got married to one another within the 90 days following entry to the U.S. If you did that, you are fine. There is no deadline to file for AoS, and you can file for AoS even up to 2 years later and adjust status based on the I-134 (Affidavit of Support) that was part of the I-129F and K-1 package.

Now it gets a bit complicated.

The K-1 leads to a conditional, 2-year Green Card.

However, if a couple has been married for 2 years by the time they file for Adjustment of Status, the foreign spouse would get an unconditional, 10-year Green Card.

This is like you buying a computer program and when you have loaded it, the damn machine crashes!

Now, if you were to file for AoS after you have been married for 2 years, you could not adjust based on the I-129F and the I-134 anymore. Instead, you would file for AoS based on being married to a US citizen. Part of such a petition is the I-130 (instead of the I-129F) and the I-864 instead of the I-134. Both are Affidavit of Support, but the I-864 allows for a co-sponsor.

So not to worry, there's no penalty for filing for AoS months after the I-94 expired.

[Harpa Timsah 13,258]

AOS in any variety requires a I-864.

[Tintin and Mike 127]

Probably too much information for you here and now, but what the heck . . .

The sole requirement of the K-1 is that you guys got married to one another within the 90 days following entry to the U.S. If you did that, you are fine. There is no deadline to file for AoS, and you can file for AoS even up to 2 years later and adjust status based on the I-134 (Affidavit of Support) that was part of the I-129F and K-1 package.

Now it gets a bit complicated.

The K-1 leads to a conditional, 2-year Green Card.

However, if a couple has been married for 2 years by the time they file for Adjustment of Status, the foreign spouse would get an unconditional, 10-year Green Card.

This is like you buying a computer program and when you have loaded it, the damn machine crashes!

Now, if you were to file for AoS after you have been married for 2 years, you could not adjust based on the I-129F and the I-134 anymore. Instead, you would file for AoS based on being married to a US citizen. Part of such a petition is the I-130 (instead of the I-129F) and the I-864 instead of the I-134. Both are Affidavit of Support, but the I-864 allows for a co-sponsor.

So not to worry, there's no penalty for filing for AoS months after the I-94 expired.

:thumbs:

You've met the requirement for K1 visa, got married within 90 days so you're good

Good luck!

[Brother Hesekiel 2,235]

AOS in any variety requires a I-864.

You are correct, of course.

Brain freeze on my part. My excuse: it's my daughter's birthday and mom and she managed to get the Happy Birthday sign on fire and drop it on the carpet. I'm not myself today . . .

[Harpa Timsah 13,258]

You are correct, of course.

Brain freeze on my part. My excuse: it's my daughter's birthday and mom and she managed to get the Happy Birthday sign on fire and drop it on the carpet. I'm not myself today . . .

Woo party! Shazaam!

[Reyan 56]

As others have mentioned, you can file the AOS later since you've met the K1 requirement of marrying within 90 day of the I-94 expiration.

Another problem for the beneficiary that I can think of is what happens if the marriage fails and the AOS is not filed (nobody thinks it will happen to them, but it does happen). The petitioner is not obligated to file the AOS, so this would put the beneficiary in a worse situation. That's why I say file ASAP, even if you have to borrow the money. For those thinking of doing the K1 route, please set aside funds for the AOS fees. The AOS fee shouldn't be a surprise. I personally would not like to have my spouse's life put on hold when this could be prevented.

[VanessaTony 3,567]

My Fiance' (now Husband) came from England to the U.S. on a K1 Visa in May in this and we were married in under 90 days.

We were told by three different folks at Home Land Security Customer Service that there was no deadline involved in sending in our I-485; not the first time we were given in wrong information by HLS Representatives. There is no deadline to file I-485

My Husband's I-94 expired November 9th so that means we are about 32 days Out-of-Status as far as I can tell correct and NOT eligible to use the I-485. incorrect. There is no deadline, you're still eligible. I filed about 4 months after mine expired and was approved without RFE or interview

I've been looking online all day and night hoping to find out what move to make next since the I-485 appears to not be an option now. It's still an option

I DID see one site where someone claimed that we are out-of-status and unable to file the I-485 ONLY IF we are beyond 180 days AFTER the I-94 expiration date. I don't know what site you're on. The only thing that is too risky is the I-131 (for advanced parole) because with 180 days of overstay you could have ban issues

I just wanna know what my options are... what's the right form at THIS stage? file I-485

Am I out of options and need a lawyer, now? No lawyer required

Should we just send in the I-485 anyway and maybe explain our reasons for lateness in a separate letter? Yep file, file the I-131 and I-765 as well (guide in my signature will help you) and no, no need for a letter

Responses in red above.

You are eligible to file AOS based on the K1 as long as you married your K1 petitioner in the 90 days. If you married after 90 days, but married the original K1 petitioner you need to file an I-130 with AOS. If you file AOS after 2 years of marriage then also file the I-130.