Status while awaiting AOS interview? (split thread)

[jess100 53]

We have many of these questions as well-Is my husband legal pending the AOS intereview? Does anyone know if people with pending AOS but expired visas and I-94 are still being detained as they were a few years ago? Has anything changed on that front? We are afraid to drive across the state to visit my family.

We have done all the requirements of the fiance visa (married 6 days after he entered the US-got the medical and vaccinations, applied for AOS, EAD, and AP)

We received the AP and EAD but no word on the AOS interview (except and RFE for a mistake on their part)

Now his 1-94 is expired, his visa is about to expire, and we don't have an interview date for AOS.

From what I'm reading (http://www.ilw.com/articles/2009,0120-rizzo.shtm) he can be detained because both CBP and ICE consider him out of status as soon as the I-94 expires, regardless of what USCIS says.

[KayDeeCee 4,896]

The K-1 visa became null and void when it was used to enter the US. The expiration date on it was solely for entering the US.

Many people adjusting from a K-1 never have an interview, so you may be approved without one.

You can drive domestically between states. Carry the EAD/AP and copy of the receipt notice from filing the I-485. You can travel abroad and re-enter the US using the AP.

While waiting for the AOS to be approved, you are in a period of authorized stay.

https://fam.state.gov/fam/09FAM/09FAM030209.html#M302_9_10_B_1

9 FAM 302.9-14(B)(1) (U) Interpretation of “Unlawful Presence”

(CT:VISA-74; 03-03-2016)

a. (U) INA 212(a)(9)(B)(ii) provides the following construction for the term "unlawful presence": “… the alien is present in the United States after the expiration of the period of stay authorized by the [secretary of Homeland Security] or is present in the United States without being admitted or paroled." Under this construction, an alien would generally be unlawfully present if he or she entered the United States without inspection, or stayed beyond the date specified on the Form I-94, Arrival and Departure Record, or was found by the Department of Homeland Security (DHS) or an immigration judge (IJ) or the Board of Immigration Appeals (BIA) to have violated status. However, even aliens fitting into one of these categories may be deemed to be in a period of authorized stay in certain circumstances, as noted below.

b. (U) DHS has interpreted "period of stay authorized by the Secretary of Homeland Security" as used in the construction of unlawful presence in INA 212(a)(9)(B)(ii) to include:

(1) (U) For aliens inspected and admitted or paroled until a date specified on the Form I-94 or any extension, any period of presence in the United States up until either:

(a) (U) The expiration of the Form I-94 (or any extension); or

(b) (U) A formal finding of a status violation made by DHS, IJ, or the BIA in the context of an application for an immigration benefit or in removal proceedings, whichever comes first.

(2) (U) For aliens inspected and admitted for "duration of status" (DOS), any period of presence in the United States, unless DHS, IJ, or the BIA makes a formal finding of a status violation, in which case unlawful presence will only begin to accrue as of the date of the formal finding;

(3) (U) For aliens granted "voluntary departure" (VD), pursuant to INA 240B, the period of time between the granting of VD and the date for their departure, if the alien departs according to the terms of the grant of VD;

(4) (U) For aliens who have applied for extension of stay or change of nonimmigrant classification and who have remained in the United States after expiration of the Form I-94 while awaiting DHS's decision, the entire period of the pendency of the application, provided that:

(a) (U) The alien does not work unlawfully while the application is pending and did not unlawfully prior filing the application; and

(b) (U) The alien did not otherwise fail to maintain his or her status prior to the filing of the application (unless the application is approved at the discretion of USCIS and the failure to maintain status is solely a result of the expiration of the Form I-94), and further provided either:

(i) (U) That the application was subsequently approved; or

(ii) (U) If the application was denied or the alien departed while the application was still pending, that the application was timely filed and nonfrivolous.

(5) (U) For aliens who have properly filed an application for adjustment of status to that of a lawful permanent resident (LPR), the entire period of the pendency of the application, even if the application is subsequently denied or abandoned, provided the alien (unless seeking to adjust status under NACARA or HRIFA) did not file for adjustment "defensively" (i.e., after deportation proceedings had already been initiated);

6) (U) For aliens covered by Temporary Protected Status (TPS), the period after TPS went into effect and prior to its expiration; and

(7) (U) For aliens granted deferred action, the period during which deferred action is authorized.

(U) The foregoing above list is not exhaustive.