Will my aos application be terminated if close to expiration date?

[ForeverJune 4]

Hi everyone,

So my K-1 visa was approved back in August, and I packed everything and moved that same month. I went through customs August 21st, and we were married August 24th. The customs officer wrote that the expiration date would be November 18th however, due to some trouble getting all the forms together, we only sent out the AOS package yesterday. We express mailed it to Chicago, and they told us it would arrive at the location by 8am on Nov 14th. We're very worried that my entire application is going to be terminated if they don't file it before the 18th.

I've been reading very conflicting statements online with some claiming that since we married within the 90 days I should be okay if they file it after, and others saying that if they don't file it before the 18th, I'll be liable for deportation.

Does anyone have any advice or know of which is more likely to be true?

Thank you!

[EM_Vandaveer 2,417]

No timeline for filing AOS. Some wait years before filing (not recommended, because one can't travel or work in the meantime).

[TBoneTX 46,304]

True.

*** Thread is moved from the K-1 Process forum to the AOS/Family-Based Case Progress subforum -- topic involves that phase. ***

[ForeverJune 4]

Thank you very much!

After reading several things online, we were very stressed that I would have to go back because we didn't get the paperwork sent in in the 90 day.
What a relief!

[KayDeeCee 4,896]

There is no time limit/deadline in which to file for AOS. As long as you married within 90 days then you are eligible to file based on your approved I-129F petition and fulling the requirements of the K-1 visa. However, you will be out of status and begin to accrue unlawful presence between your I-94 expiring and filing for AOS. Once you file for AOS, you then enter a new period of authorized stay while waiting for your green card approval.

[Emma&Jerry 2]

Hello, can you clarify, no timeline to file AOS meaning some people can choose to take their sweet time to file for AOS after marriage right?

But at the same time will also be out of status? How long is the validity of the I 94? Wouldn't "out of status" be the same as being in the US illegally and thus, at risk of deportation/prosecution?

I hope experienced VJers can help clarify. Thanks!

[ForeverJune 4]

Hello, can you clarify, no timeline to file AOS meaning some people can choose to take their sweet time to file for AOS after marriage right?

But at the same time will also be out of status? How long is the validity of the I 94? Wouldn't "out of status" be the same as being in the US illegally and thus, at risk of deportation/prosecution?

I hope experienced VJers can help clarify. Thanks!

Hi,

I have a lot of the same questions which is why I'm unsure of what is going on. As far as I know, the I-94 lasts 90 days. The customs officer wrote down the expiration date as 3 months from the day I entered the US. That being said, I assumed that filing paperwork past that expiration date meant that I was in the US illegally even if we had married during that time. I don't know if the fact that I've sent in the AOS package means that my status has changed or not, so I guess based off of what the other members have said so long as you get married within the 90 days, you're fine?

[f f 725]

if you get married within 90 days and file in 90 days then everything is excellent

if you get married within 90 days and file after 90 days then you are acrewing unlawful presence but it is forgiven with an approved aos. you do however run the risk if you get caught by cbp but they should let you file the aos

if you get married after 90 days and file after 90 days then you need to file i130 and i485 concurrently and are again at the mercy of cbp if they get you

can someone please correct this if I got it wrong

[KayDeeCee 4,896]

The validity of an I-94 for a K-1 entrant is 90 days. If they marry within those 90 days, then they are eligible to file for AOS based on their K-1 entry and subsequent marriage. There is no deadline for that eligibility.

Yes, they will be out of status after the I-94 has expired and before filing for AOS. Yes, out of status = overstay = unlawful presence = illegal. And yes, ICE can detain a K-1 entrant that has an expired I-94. It is a rare occurrence, but it has happened.

When you enter with a fiance(e) visa, you are entering with a non-immigrant visa and all the laws pertaining to an entry with a non-immigrant visa apply to someone entering with a K-1, except that a K-1 entrant cannot apply to extend the stay on their visa(https://www.uscis.gov/visit-united-states/extend-your-stay). The only difference is that with a K-1, you become eligible to file for AOS when you marry your USC petitioner within 90 days of entry. When your I-94 expires, you are indeed out of status, which is the same as unlawful presence, and once you file for AOS you will be an adjustment applicant and are legally permitted to stay in the US while waiting for your AOS to be processed. Once approved, you will then become a lawful permanent resident.

8 CFR Sec. 214.2(k)(6)(ii)

(k) Spouses, Fiancées, and Fiancés of United States Citizens—

...

(6) Adjustment of status from nonimmigrant to immigrant.

...

(ii) Nonimmigrant visa issued on or after November 10, 1986. Upon contracting a valid marriage to the petitioner within 90 days of his or her admission as a nonimmigrant pursuant to a valid K-1 visa issued on or after November 10, 1986, the K-1 beneficiary and his or her minor children may apply for adjustment of status to lawful permanent resident under section 245 of the Act. Upon approval of the application the director shall record their lawful admission for permanent residence in accordance with that section and subject to the conditions prescribed in section 216 of the Act.

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

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 <-- authorized stay ends when I-94 expires.

(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.

...
(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); <-- BUT another period of authorized stay while AOS is pending.