AOS required by end of 90-day K-1 period?

[jft 12]

My wife and I got married a couple of weeks ago, three weeks before the end of her 90 day K-1 visa. However with the post-wedding actiities (honeymoon, etc) I have not had any time to look at the AOS process isn great detail. Do I have to file it legally before our 90 day period is up or is it ok if we miss it by a week or two? I have read here on VJ of many folks who have waited without too much of an issue but Im asking here what the letter of the law is, not what one can get away with. Thanks!

[aleful 1,905]

hi

no, you have to get married before the 90 days are up, which you did.

Congrats!

it is always best to file the AOS as soon as you can.

[Dave&Roza 748]

My wife and I got married a couple of weeks ago, three weeks before the end of her 90 day K-1 visa. However with the post-wedding actiities (honeymoon, etc) I have not had any time to look at the AOS process isn great detail. Do I have to file it legally before our 90 day period is up or is it ok if we miss it by a week or two? I have read here on VJ of many folks who have waited without too much of an issue but Im asking here what the letter of the law is, not what one can get away with. Thanks!

The K-1 visa is a one entry visa used for the express purpose of getting married within 90 days of the beneficiary's arrival in the US--i.e. before the I-94 expires. You have done that. End of your obligations using the K-1 visa. However, the beneficiary cannot legally work or travel outside the US and return without the employment authorization document (EAD) or advance parole (AP) or the green card (GC). The only way to get those documents is to file for adjustment of status (AOS) with the I-485 form. When do you have to do that. It is not specified. Most people do it ASAP after getting married so they can begin the process of becoming a lawful permanent t resident (LPR) and begin the clock towards becoming a US citizen (USC).

Once the I-94 expires the beneficiary begins to accrue over-stay days which are forgiven for the spouse of a USC. You have no legal status proof so if you happen upon a CBP check point near one of the borders, the beneficiary can be detained and hauled in front of an immigration judge. The IJ will see that the beneficiary is in fact married to a USC and eligible for filing AOS. The IJ will release you and tell you to file the AOS. The IJ may even give you a court order that you have until X date to file by. Miss that date and the beneficiary will be placed in deportation proceedings. All that is highly unlikely. Wait too long to file the AOS and you will have to pay to have a new medical done. Wait past the 180 days after the I-94 expires and there is a debate whether you can use the AP so why bother filing for it. Wait for 2 years after marriage and you become eligible for the 10 year GC instead of the conditional 2 year GC, but the K-1 MUST receive the 2 year conditional GC per the CFR (code of federal regulations) so it is suggested you file the I-130 with the I-485 to overcome this catch-22.

File as soon as you have the money and the documents in order so your spouse can begin their life in the US as a LPR.

Good luck,

Dave

[jft 12]

Its beginning to look like wed be better off filing now even if the paperwork is not perfect rather than waiting. It would be a lot easier if work wasnt in a full-tilt end-of-year panic but I guess I can go without sleep instead if thats what it takes to get it done.

Edited December 8, 2013 by jft

[Bugs 455]

You are allowed to file at any time, as they will accept and process the application when you file - no deadline. However, you do not have legal status in the U.S. after your 90 days are up until you do file.

[KayDeeCee 4,896]

Its beginning to look like wed be better off filing now even if the paperwork is not perfect rather than waiting. It would be a lot easier if work wasnt in a full-tilt end-of-year panic but I guess I can go without sleep instead if thats what it takes to get it done.

No reason to panic. You can take your time and fill out the forms correctly and gather the required documentation. There is no deadline to file since you married within 90 days of her K-1 entry. People apply a few days or weeks after the I-94 expires quite often and have no problems. Some even file months or years later. Yes, they will be out of status when their I-94s expire, but it is highly unlikely they would ever be detained by ICE, especially if they are not planning to be near any border checkpoints in the few weeks before filing for AOS. Once they file, they will be a new period of authorized stay. Just file as soon as you can so they can get their EAD/AP and green cards as soon as possible. The K-2 child needs the EAD in order to get an SSN.