K1 Overstay Question

[FrankJMaffia 0]

Hi Everyone,

I've been reading so many mixed messages on this topic and they are all super old so I figure I'd ask here. My Wife arrived on a K-1 last April (2013), we married within 90 days like the visa requires. we ran into issues with her AOS which led to the documents not being accepted till This Feb. This is beyond 180 days after her I-94, and Visa expired. We applied for Advanced parole along with EAD, and AOS. We were hoping to get back to Aus this year to see her family. the question i have is whether K1 holders are considered out of status if the visa expires, and AOS isnt filed, we dont want to be on our way back to find out she isnt allowed back in. has anyone had a similar experience? Thanks!

[belinda63 3,047]

I wouldn't risk it. The time between the expiration of the I-94 and the receipt of the I-485 is considered overstay. It will be forgiven when she obtains her green card.

[Hypnos 6,578]

Yes, a K-1 accrues overstay after their I-94 expires and they don't file for AoS, in exactly the same way anyone else with a defined expiration date on their I-94 does.

There is a BIA decision called Matter of Arrabally and Yerrabelly which stated that the overstay bars (3 and 10 year bars) do not apply to someone with AP, and, indeed, USCIS has removed the warnings stating that overstay can jeopardise an alien being readmitted to the US after foreign travel from the I-131 instructions. Theoretically, this means that someone with AP should be safe to travel overseas even with any amount of overstay. Practically, I wouldn't risk it, unless it's literally a life-or-death situation. You are gambling on the CBP officer being good at his job and knowledgeable of the law.

It's up to you whether you are willing to take the risk. Everything would probably turn out ok, but there's a chance it wouldn't.

[Kiwinyc 62]

Hi Everyone,

I've been reading so many mixed messages on this topic and they are all super old so I figure I'd ask here. My Wife arrived on a K-1 last April (2013), we married within 90 days like the visa requires. we ran into issues with her AOS which led to the documents not being accepted till This Feb. This is beyond 180 days after her I-94, and Visa expired. We applied for Advanced parole along with EAD, and AOS. We were hoping to get back to Aus this year to see her family. the question i have is whether K1 holders are considered out of status if the visa expires, and AOS isnt filed, we dont want to be on our way back to find out she isnt allowed back in. has anyone had a similar experience? Thanks!

Your wife shouldn't travel out of the US until she receives her AP. (It'll probably be combined on the same card with her EAD) With that she can return to the US.

Don't worry about the overstay time. The K1 visa itself expired upon entry to the U.S. and although you have to get married within 90 days (which you did) a lot of people don't manage to apply for AOS within that time. Not doing so puts the K1 into a grey area where they are technically overstaying and subject to deportation but once you do file for AOS my understanding is that the 'overstay' time is forgiven upon receipt of the i-485, and issuance of NOA1. it does not adversely effect the adjudication of the i-485 either.

But she has to have her AP approved and in hand to return to the US! Currently its taking an average of 2-3 months to get EAD/AP cards so she should receive it by the end of May if you filed in Feb.

[KayDeeCee 4,896]

The overstay clock stops when you file for AOS and then begin a new period of authorized stay, but the overstay that you already accrued is not 'forgiven' until the green card is approved.