Is it possible to apply AOS after the 90 days of K1 visa?

[SteveKarlaMayer 21]

Hi friends, I'm here again. Please bear with me and I hope somebody could enlighten me from my confusion.

Here's the situation. I arrived here in USA last month. So I only have 2 months left now because I'm under K1 visa. However, my fiance will be working in Germany for 1 month starting on 31st of August. We already got marriage license and planned to get married on the first week of October which will be my last month under K1 visa. The court said that we need to wait 3 weeks to get the marriage certificate so I thought we couldn't apply for an AOS immediately because we have to wait 3 weeks for the marriage certificate. And by that time, my K1 90 days is already expired.

My question is. Would it be a problem if we apply for AOS after the 90 days under K1 visa? Will I be deported just because we can't file AOS right away even though we're already married?

Answers will be highly appreciated. God bless you all. Thanks!

Steve & Karla

[Hypnos 6,576]

You can apply for AoS after you get married at any point you wish, but you must have married within the original 90 days to be able to do so. Once that is done, you can submit the I-485 (and supporting documents) at any point, but will be out of status (and therefore deportable) from the day the I-94 expires until the day the I-485 is accepted for processing by USCIS.

If you marry after the original 90 days from PoE you can still file for AoS but would need to also file an I-130, since you did not fulfill the terms of the K-1 visa by marrying within 90 days.

Edited August 29, 2013 by Hypnos

[KayDeeCee 4,893]

This is asked often. There is no deadline to file for AOS. As long as you marry within 90 days of entry with the K-1, and never leave the US, then you are eligible to file for AOS. However, you will be out of status when your I-94 expires and cannot travel and re-enter the US, work, and most likely not be able to get a license or state ID until you file for AOS and get your EAD/AP or green card. You won't be deported, but there is a small chance of being detained while out of status. Once you file for AOS, you will be a new period of authorized stay. Just file as soon as you can.

~ Moved from K-1 Process to AOS from Family Based Visas- topic about AOS, not K-1 ~

[SteveKarlaMayer 21]

This is asked often. There is no deadline to file for AOS. As long as you marry within 90 days of entry with the K-1, and never leave the US, then you are eligible to file for AOS. However, you will be out of status when your I-94 expires and cannot travel and re-enter the US, work, and most likely not be able to get a license or state ID until you file for AOS and get your EAD/AP or green card. You won't be deported, but there is a small chance of being detained while out of status. Once you file for AOS, you will be a new period of authorized stay. Just file as soon as you can.

~ Moved from K-1 Process to AOS from Family Based Visas- topic about AOS, not K-1 ~

Thank you. So it wouldn't be a problem then? We planned to immediately apply for AOS after the marriage because we thought that we could get the marriage certificate after 3 days but the court said it will be issued after 3 weeks. So we have no choice but to wait for it even if we can file right away because it is the number 1 needed in the AOS packet. And yes, we will get married within the 90 days. Thanks for the answer. I feel relieved now.

[KayDeeCee 4,893]

Thank you. So it wouldn't be a problem then? We planned to immediately apply for AOS after the marriage because we thought that we could get the marriage certificate after 3 days but the court said it will be issued after 3 weeks. So we have no choice but to wait for it even if we can file right away because it is the number 1 needed in the AOS packet. And yes, we will get married within the 90 days. Thanks for the answer. I feel relieved now.

Not a problem. People file days, weeks, months and occasionally years after their I-94 expired. Waiting a few weeks will not be an issue.

[Darnell 8,478]

echo: There is no regulation, or even law, under 9 FAM stating when to file for an adjustment of status, when adjusting from a K-1 visa.

The only reg about your presence in the USA - is that:

1. you are governed by the I-94 and

2. you must marry within 90 days of arrival and

3. a new period of authorized stay commences when you receive the NOA-1 after filing the AOS set.

IMO, it's perfectly fine to file the AOS set after the duration on your I-94 expires - no INS folk looking for you ..... You might have problems at a CBP checkpoint, but that's it.

----

errata- get a SSN nowish, todayish, in visa name, if you not already do this.

[DavenRoxy 1,073]

Deportable? I don't think so. As stated above, you are considered "out of status" between I-94 expiration and receiving your GC, but as long as you don't try to cross a US border, no issue.

I agree with Darnell, I'd go file for a SSN right now, before your I-94 expires. You can always do a name change on it after you have a marriage certificate.

[Hypnos 6,576]

Yes, deportable, as in you can be detained by ICE and theoretically deported to your country of origin for being out of status.

That's highly unlikely to happen, but it remains a possibility for anyone not present in the US in a legal status.

Edited August 29, 2013 by Hypnos

[SteveKarlaMayer 21]

Deportable? I don't think so. As stated above, you are considered "out of status" between I-94 expiration and receiving your GC, but as long as you don't try to cross a US border, no issue.

I agree with Darnell, I'd go file for a SSN right now, before your I-94 expires. You can always do a name change on it after you have a marriage certificate.

I already applied SSN, they are checking my name to the immigration yet and they said they will send it within few weeks.

My concern is about my status. I'm sure we can get married within the 90 days but we can't file the AOS right away because of the 3 weeks waiting to get the marriage certificate.

[DavenRoxy 1,073]

Yes, deportable, as in you can be detained by ICE and theoretically deported to your country of origin for being out of status.

That's highly unlikely to happen, but it remains a possibility for anyone not present in the US in a legal status.

Can you show me something in writing about such? Because when I spoke to USCIS about this last year, they said it would not affect my spouse in any way, as long as she didn't leave the US (because she would NOT be allowed back in) while out of status. Why would a person be deportable? There is no requirement to file AOS from all the reading I have done.

I already applied SSN, they are checking my name to the immigration yet and they said they will send it within few weeks.

My concern is about my status. I'm sure we can get married within the 90 days but we can't file the AOS right away because of the 3 weeks waiting to get the marriage certificate.

Not an issue. Several on here have had to wait months, or even years due to financial reasons or other. We filed AOS right away because the DMV forced us to, otherwise we would have waited a bit longer than we did.

[Darnell 8,478]

I already applied SSN, they are checking my name to the immigration yet and they said they will send it within few weeks.

Uh oh. you should go back today and find out status. go in person. all ok? they give you printout of the number. Problems? you learn about them .

'checking my name to the immigration' always translates to 'sent out for DHS verification', which, alas, is the kiss of death.

You should follow this, instead:

http://www.visajourney.com/forums/topic/405546-ssn-howto/

http://www.visajourney.com/forums/topic/405546-ssn-howto/

http://www.visajourney.com/forums/topic/405546-ssn-howto/

Smells like no one find you in SAVE database - but it's quite possible that:

1. SSA clerk not know what they were doing or

2. you have error in SAVE database on your name, captured at the POE.

Read the link I posted, refactor your plan, nowish.

Go Get Em, and Good Luck !

Edited August 30, 2013 by Darnell

[Hypnos 6,576]

Anyone who is out of status is subject to detention by ICE, for which the most severe punishment is deportation back to their country of origin. As I said, it's highly unlikely to happen, but it is possible.

Once ICE detain you then they will decide whether you should remain in custody until your initial hearing before an immigration judge or can be released on bond (or similar) until that point. At the hearing, the immigration judge would examine whether the alien had any relief available (such as AoS through an immediate relative, fear of persecution or death in your county of origin, etc.). If there was no relief, then deportation would likely be the end result. This is why it's important for K-1s to marry ASAP, because it gives them protection that they do not otherwise have should the relationship break down before any AoS is filed.

I was skimming the blog of someone going through the process of being deported just a couple of days ago (http://mydeportation.wordpress.com/) and it happened essentially like that; he was a student who overstayed his visa, and eventually ICE caught up with him and he is now being deported. His wife is pregnant, too; it's a very sad story.

Often, K-1s in particular think that getting married protects them from detention with ICE, when this is absolutely not the case. Now, in front of an immigration judge being married to a US citizen will give them a form of relief, but that's all.

Out of status = illegally present in the US, for which anyone can be detained at any time by ICE. Provided you don't go near internal CBP checkpoints or get arrested then there would probably be little danger, but it remains a possibility.

CBP agents have also started boarding trains and buses in an attempt to find people illegally present (http://www.nytimes.com/2010/08/30/nyregion/30border.html) which is something to also bear in mind.

[KayDeeCee 4,893]

Can you show me something in writing about such? Because when I spoke to USCIS about this last year, they said it would not affect my spouse in any way, as long as she didn't leave the US (because she would NOT be allowed back in) while out of status. Why would a person be deportable? There is no requirement to file AOS from all the reading I have done.

Being married to a USC does not give anyone status in the US. Having an approved I-129F and K-1 visa then getting married within 90 days of entering with the K-1 is what makes you eligible to file for AOS. If you do not leave the US, your eligibility never runs out. In other words, there is no deadline for filing the AOS, but that does not protect your status. Once the I-94 is expired, if you have not filed for AOS yet, you are out of status and there is the small chance of being detained. Someone here on a K-1 that is out of status would most likely be told by the immigration judge to file for AOS since they are eligible and would avoid deportation if they ever so happened to be detained. Filing for AOS puts you in a new period of authorized stay.

[DavenRoxy 1,073]

Being married to a USC does not give anyone status in the US.

I never said it did. But thank you for supporting my post otherwise!

[DavenRoxy 1,073]

Hypnos, I don't disagree with you that it's wise to file for AOS soon after marriage. But I stand by my belief that in the case of K-1 folks, being out of status does NOT mean that you are here illegally as it does with a work visa. Different visa, different rules. Those links you included above are not for K-1 folks who failed to file AOS ASAP.

To prove my point, here's an email directly from my local USCIS office:

Good afternoon to both of you,

I do apologize that it took this long to get back with you on this matter. I spoke to a couple of my colleagues here in the office and it is not required to file the Adjustment of Status application. Mr. XXXXX's wife has fulfilled her obligations by marrying the petitioner within the 90 day window from entry.

AOS is not required. Straight from the USCIS. A K-1 who has married within 90 days has met ALL the obligations of the K-1 (entry) and the I-94 (grace period for marriage). I can't find anywhere that not filing AOS makes one subject to deportation, other than folks' opinions here.