I'm very confused Now

[donv 0]

So,

My wife had the I-94 we are now married.

The I-94 is expired but we haven't received our marriage certificate yet. Can we still file the AOS papers.

Is she illegal now? We literally married on her last day on the I-94. What to do?

thanks

[Pitaya 2,577]

~Moved from K1 Process to Family-based AOS Forum~

~Inquiry about AOS process, past K1~

~duplicate thread removed~

Edited June 26, 2014 by A&B

[GurkenSalat 48]

She accumulates days of overstay until you file for AOS. How long until you get the certificate? You cut it awfully close...

[Caryh 5,206]

As noted, she's not accumulating overstay days right now. But no one is going to come hunt her down. The overstay days are forgiven when she adjusts status and gets her green card, as the spouse of a citizen. As soon as the NOA1 on her AOS application comes, she is no longer accumulating overstay days, as she's then in a period of authorized stay.

[bunnygirl 86]

She accumulates days of overstay until you file for AOS. How long until you get the certificate? You cut it awfully close...

No she doesn't. She's now out of status but is NOT in an overstay situation.

OP, it's wise to file for AOS as soon as possible so maybe get the rest of your forms ready and send off as soon as you receive your marriage certificate.

[Hypnos 6,578]

No she doesn't. She's now out of status but is NOT in an overstay situation.

You are mistaken. A K-1 begins to accumulate overstay as soon as their I-94 expires, up until the day that their I-485 is accepted for processing. Providing the OP files their I-485 in a reasonable amount of time then the risk of detention by ICE is minimal, but it exists.

[bunnygirl 86]

You are mistaken. A K-1 begins to accumulate overstay as soon as their I-94 expires, up until the day that their I-485 is accepted for processing. Providing the OP files their I-485 in a reasonable amount of time then the risk of detention by ICE is minimal, but it exists.

I'm sorry but you're wrong.

The only requirement of the K1 visa is to get married within 90 days. This is the only requirement in order to be eligible to adjust status based on a K1 visa. It doesn't mean you are "legal" if the I-94 expires. "Out of status" means you have no lawful status as defined in the INA - you're not a non-immigrant, you're not a permanent resident, you're not a citizen or a national of the US. You're an alien whose permission to be in the United States has expired. What separates you from someone who overstayed their visitor's visa is that you would be eligible to adjust status, even though your I-94 had expired.

What happens is that you begin accumulating unlawful presence when the I-94 expires. You stop accumulating unlawful presence when the AOS petition is accepted, but that doesn't restore you to lawful status. What it does do is grant you permission to remain in the US until a decision is made on the AOS petition. In other words, you're "out of status" but not "unlawfully present". It is NOT an overstay which is a completely separate legal term and has very serious ramifications.

[Caryh 5,206]

No she doesn't. She's now out of status but is NOT in an overstay situation.

OP, it's wise to file for AOS as soon as possible so maybe get the rest of your forms ready and send off as soon as you receive your marriage certificate.

If you follow a few cases of people who never adjusted status on a K-1 and the marriage ended, you'd see they are in an overstay condition and do accumulate overstay days resulting in a bar on re-entry. There is nothing special about the K-1 visa that makes it immune to the law regarding the time period allowed on the I-94. USCIS forgives the overstay days when they adjust status, but that does not mean they did not accrue.

[Hypnos 6,578]

I am not wrong. This is probably one of the most common misconceptions on VJ, and comes up regularly every couple of weeks.

Once your I-94 expires you are out of status and unlawfully present. This goes for almost anyone that has an I-94 with a defined expiration date, such as a B-2, K-1, or almost any other kind of nonimmigrant visa.

If the K-1 married their US citizen petitioner within 90 days of PoE (so on or before the expiration date indicated on the I-94) then any overstay will not be an impediment to the alien being able to adjust status because they are an immediate relative of a US citizen, so they need only prove that they entered the US legally, not that they have maintained their nonimmigrant status.

K-1s accumulate overstay the same as nearly everyone else; there is nothing magical about them that prevents that.

This really should be stickied somewhere.

[Caryh 5,206]

I am not wrong. This is probably one of the most common misconceptions on VJ, and comes up regularly every couple of weeks.

Once your I-94 expires you are out of status and unlawfully present. This goes for almost anyone that has an I-94 with a defined expiration date, such as a B-2, K-1, or almost any other kind of nonimmigrant visa.

If the K-1 married their US citizen petitioner within 90 days of PoE (so on or before the expiration date indicated on the I-94) then any overstay will not be an impediment to the alien being able to adjust status because they are an immediate relative of a US citizen, so they need only prove that they entered the US legally, not that they have maintained their nonimmigrant status.

K-1s accumulate overstay the same as nearly everyone else; there is nothing magical about them that prevents that.

This really should be stickied somewhere.

It should be actually. And we should also double check to make sure each wording matched with USCIS, the State Department and CBP. A job probably all in itself.

[GurkenSalat 48]

Wait, so... accumulated out of status days are NOT the same as "overstay days"? I'm really confused right now...

[nobbie 105]

Just file when you get your marriage cert and it will be fine. technically you're out of status but if you file for AoS then they wont bother. As long as you dont leave it forever.

[Hypnos 6,578]

Wait, so... accumulated out of status days are NOT the same as "overstay days"? I'm really confused right now...

They are; that poster was mistaken. That's basically the definition of overstay, days you spend unlawfully present in the US after your period of authorised stay ends.

[rmarkwallace 7]

But this is also why you rush your beneficiary to a justice of the peace as soon as the jet lag wears off and you have the nice wedding that you want later. All you need is for the benrficiary to go into the hospital on the 85th day. You also can't put him or her on your insurance until there is a wedding and don't get the ball rolling on her right to work until you adjust status.

[rmarkwallace 7]

http://www.visapro.com/Immigration-Articles/?a=1484&z=46

Here are some definitions of being out of status, unlawfully present, and what happens once it's resolved. If I were him, I would avoid having his beneficiary flash her passport at the border or such, but he wouldn't be the first person to file late because he lacked a document. Nothing is going to happen if a real marriage took place within 90 days of arrival. It is also possible if the marriage didn't take place until after the 90th day but I wouldn't take a chance.