ReApplying & Out of Status Time

[SV350z 3]

Hey everyone, hoping you can help with a few questions.  My Spouse entered the US on a K1 Visa in Dec 2015.  We married within 30 days and thus met the requirements for the 90 day marriage period.   My Spouse's I94 was valid until 3/2/2016. For many reasons namely trying to get established and also money we did not finally file AOS until Dec 2016 and got a "case recieved" message in Jan of 2017.  This means there was an extensive period which could be considered "AOS" depending on -- how the law is interpreted.  I see in the past this is AOS but I also see in more recent posts online that apparently there is some debate (legally) over this and possibly it's not considered overstay in the case of a K1/AOS?  I also used the CBP/DHS compliance checker which is supposed to show overstay time and violations - upon searching my spouse's info comes up but it does not list any violations or overstay time accumulated. (https://i94.cbp.dhs.gov/I94/#/compliance-search)

 

So my questions on that part:

 

1. Does all the time count as overstay against my spouse and if so does using AP become risky?  The goal here is to know if it's safe to AP (from that standpoint).

 

Next : My Spouse's initial AOS application was -denied- because I am independent contractor and due to my deductions on paper did not "meet the income requirement", I failed to realize this.  I supplied additional info on an RFE but ultimately they found it incomplete (my fault) and it was denied.  The denial said no bais is applied to reapplication.  My spouse already had medical and biometrics done in Jan/Feb of this year.

 

As a result, when we reapply:

 

1. Does he need to do the medical again?

2. Does he need to do biometrics again? Do we have to pay these fees? Do we pay the whole $1070?

 

Thanks so much and sorry for the long post.

 

 

[geowrian 22,337]

20 minutes ago, SV350z said:

1. Does all the time count as overstay against my spouse and if so does using AP become risky?  The goal here is to know if it's safe to AP (from that standpoint).

 

Next : My Spouse's initial AOS application was -denied- because I am independent contractor and due to my deductions on paper did not "meet the income requirement", I failed to realize this.  I supplied additional info on an RFE but ultimately they found it incomplete (my fault) and it was denied.  The denial said no bais is applied to reapplication.  My spouse already had medical and biometrics done in Jan/Feb of this year.

The time after 3/2/2016 through when you filed (when they received it) was overstayed. The time from the AOS denial through until when your spouse files again is also overstay. However, overstay as the spouse of a USC is ignored for AOS purposes so it really doesn't matter unless he leaves the country without a valid AP or green card.

 

Once AOS was denied, his EAD and/or AP became invalid. Your spouse cannot use that AP. When your spouse refiles and gets AP again, he can use that fine. The past overstay won't matter.

 

Quote

1. Does he need to do the medical again?

2. Does he need to do biometrics again? Do we have to pay these fees? Do we pay the whole $1070?

1. If the medical is over 1 year old, USCIS will require a new one.
2. He will need to pay for biometrics again. The total should be $1225 ($1140 I-485 + $85 biometrics)

Edited June 13, 2017 by geowrian

[SV350z 3]

@geowrian - Thanks for the fast reply.  He never got an AP/EAD originally because his I-485 ended up denied which was my fault for not submitting evidence in the -exact- way they wanted on the RFE.  I've got a well qualified joint sponsor now (my mom) to help solve that issue.

 

So just to confirm - even so with all his accumulated overstay, if he gets a new AP authorized, he can travel and that won't be used to ban him? [sorry, we are paranoid, immigration is a very intricate subject]

 

Thanks!

[geowrian 22,337]

2 minutes ago, SV350z said:

@geowrian - Thanks for the fast reply.  He never got an AP/EAD originally because his I-485 ended up denied which was my fault for not submitting evidence in the -exact- way they wanted on the RFE.  I've got a well qualified joint sponsor now (my mom) to help solve that issue.

 

So just to confirm - even so with all his accumulated overstay, if he gets a new AP authorized, he can travel and that won't be used to ban him? [sorry, we are paranoid, immigration is a very intricate subject]

Gotcha.

 

Correct. The overstay won't matter once he has the AP document from the refiled AOS.

Edited June 13, 2017 by geowrian