I-94 expired 3 days before I-485 receipt. AP invalid?

[I love San Diego 18]

Hello,

We did a K1 visa, entered the country in April, got married in May.

My wifes I-94 expired on 7/21/205

We filed for I-485 and got our I-797 receipt date of 7/24/2015 which is 3 days after the I-94 expired. Now we have the Employment Auth/AP combo card but was she out of status before our I-485 receipt, thus causing her to be barred re-entry for 3 years if she leaves the country?

Do we just have to wait for the green card to finish before she can leave the country?

Thank you

[acgmph 42]

As long as you married within 90 days of her entry you are fine.

Edit: also, bans start out at 180 days of overstay. She is double-fine

Edited September 27, 2015 by acgmph

[3rd 84]

She's fine. You have the AP card, the I-94 expiry doesn't matter any longer.

[newacct 688]

Firstly, 3-year ban is upon accruing 180 days of "unlawful presence" and then leaving.

Secondly, you cannot trigger the unlawful presence ban when leaving on AP no matter how much unlawful presence you have if you have no other bans, according ot the Matter of Arrabally decision.

[I love San Diego 18]

Is the advice in this thread wrong?

http://www.visajourney.com/forums/topic/441809-advice-on-re-entry-with-i-512-advance-parole/

She said she filed for AOS 260 days after K-1 entry into USA and everyone told her not to leave the country.

She did not say she got married 260 days after K-1 entry, just filed for AOS 260 days after entry. It seems like the people who told her she will get a three year ban are wrong.

[3rd 84]

Is the advice in this thread wrong?

http://www.visajourney.com/forums/topic/441809-advice-on-re-entry-with-i-512-advance-parole/

She said she filed for AOS 260 days after K-1 entry into USA and everyone told her not to leave the country.

She did not say she got married 260 days after K-1 entry, just filed for AOS 260 days after entry. It seems like the people who told her she will get a three year ban are wrong.

If she accrued 180 days of unlawful presence before applying for the AOS (with the AP), then she can get a 3 year ban if she leaves the country.

[I love San Diego 18]

If she accrued 180 days of unlawful presence before applying for the AOS (with the AP), then she can get a 3 year ban if she leaves the country.

Well, she got married within 90 days of entering the US, so she had zero days of unlawful presence. So why are people telling her she will be barred for three years for not filing the AOS until 260 days had passed? Are they wrong?

[3rd 84]

Well, she got married within 90 days of entering the US, so she had zero days of unlawful presence. So why are people telling her she will be barred for three years for not filing the AOS until 260 days had passed? Are they wrong?

She may have got married in the appropriate time slot that the K-1 gives, but unless you file for AOS before you accrue the 180 days of unlawful presence then the 3 year ban applies. Her I-94 would have expired 90 days after entry to the US, then the clock starts. The clock only stops once USCIS receives your AOS application. It stands to reason that if she went over the 180 days after her lawful presence of 90 days (the only time she would have been covered) then even if she applied for Advance Parole with her petition, if she left the US it would automatically result in a ban. I believe that it's always a little risky to travel with the AP even if you have no overstay at all.

But she said she applied 260 AFTER her 90 days of lawful presence. Automatic ban even if she's got the AP and in the process of a green card.

[I love San Diego 18]

She may have got married in the appropriate time slot that the K-1 gives, but unless you file for AOS before you accrue the 180 days of unlawful presence then the 3 year ban applies. Her I-94 would have expired 90 days after entry to the US, then the clock starts. The clock only stops once USCIS receives your AOS application. It stands to reason that if she went over the 180 days after her lawful presence of 90 days (the only time she would have been covered) then even if she applied for Advance Parole with her petition, if she left the US it would automatically result in a ban. I believe that it's always a little risky to travel with the AP even if you have no overstay at all.

But she said she applied 260 AFTER her 90 days of lawful presence. Automatic ban even if she's got the AP and in the process of a green card.

Ohh... strange. I was under the impression that once you got married, the I-94 didn't matter and your presence was lawful. I never read anywhere that you had to file for AOS before the 90 days was up, in fact, some people filed a year or more after they got married. So they were technically here illegally during that whole time? And my wife was here unlawfully for 3 days? What if she got stopped at an immigration checkpoint on the road during that time would she be deported?

[newacct 688]

If she accrued 180 days of unlawful presence before applying for the AOS (with the AP), then she can get a 3 year ban if she leaves the country.

This is not true. Matter of Arrabally from 2012 says otherwise.

[I love San Diego 18]

This is not true. Matter of Arrabally from 2012 says otherwise.

Just to be clear - if someone comes here on a K-1 and gets married before the 90 days is up, but they do not file for AOS before 90 days is up, they are here illegally? I never knew this. I thought once you got married, you were legal/lawful.

[newacct 688]

Is the advice in this thread wrong?

http://www.visajourney.com/forums/topic/441809-advice-on-re-entry-with-i-512-advance-parole/

She said she filed for AOS 260 days after K-1 entry into USA and everyone told her not to leave the country.

She did not say she got married 260 days after K-1 entry, just filed for AOS 260 days after entry. It seems like the people who told her she will get a three year ban are wrong.

She should not leave the country, for one, because doing so will abandon her AOS and she would have to do Consular Processing which means spending a long time abroad.

But the saying that she will get a ban are wrong. Arrabally perhaps wasn't that widely known back in 2013.

[newacct 688]

Just to be clear - if someone comes here on a K-1 and gets married before the 90 days is up, but they do not file for AOS before 90 days is up, they are here illegally? I never knew this. I thought once you got married, you were legal/lawful.

Yes. They are out of status and do not have a pending application, so they are deportable.

[I love San Diego 18]

Yes. They are out of status and do not have a pending application, so they are deportable.

Wow... so anyone who waits to file AOS is really taking a bit of a gamble.

But since she was only out of status for three days (my wife, that is) and now has a pending application, she is not deportable and can travel outside the country and all that without any problems?

Thanks for the clarification.

[newacct 688]

Wow... so anyone who waits to file AOS is really taking a bit of a gamble.

But since she was only out of status for three days (my wife, that is) and now has a pending application, she is not deportable and can travel outside the country and all that without any problems?

Thanks for the clarification.

As long as she has pending AOS (and she is eligible for AOS), she is not going to be deported for reason of being out of status.

She has to have Advance Parole to travel outside the country without abandoning AOS. She will not trigger unlawful presence ban by leaving on AP as long as she has no other bans. (Plus in your case she doesn't have enough unlawful presence to trigger any ban even if she left normally anyway.)

Edited September 28, 2015 by newacct