K1 visa AOS after I-94 expired

[Kathergarcb 0]

Hello all!! My husband is on a K1visa here in the US. We married within the 90 day period but we had a problem with filling his AOS before the November 10, 2018  I-94 date due to financial issues. We are about to send his AOS but I would like to know if there will be any issues since we are sending his AOS at a later date????? Please let me know we are nervous and don’t want his stay to be jeopardized :( will he have to leave?? Someone helpppp 

[geowrian 22,337]

No issue filing late since you married within the 90 days.

Until you do file, you are unlawfully present in the US, so the sooner you file, the better. Once filed, you have authorized stay again.

[Ben&Zian 4,398]

15 minutes ago, Kathergarcb said:

Hello all!! My husband is on a K1visa here in the US. We married within the 90 day period but we had a problem with filling his AOS before the November 10, 2018  I-94 date due to financial issues. We are about to send his AOS but I would like to know if there will be any issues since we are sending his AOS at a later date????? Please let me know we are nervous and don’t want his stay to be jeopardized will he have to leave?? Someone helpppp 

 

No. No issue, minus right now he is out of legal status, but once oyu get the NOA1 for the I-485 he will be fine to stay. Only requirement during the 90 days is to marry. While it's best to have submitted for AOS during that time period also, you can at any time without issues. In theory you could wait a year or two even and still AOS without issue; but sooner the better.

Edited November 26, 2018 by Ben&Zian

[TM92 527]

11 minutes ago, Kathergarcb said:

will he have to leave??

No need to leave. Just submit the I-485 packet now. I assume you know that USCIS now accepts credit cards and debit cards: https://www.uscis.gov/news/news-releases/uscis-expands-credit-card-payment-option-fees I also assume you know that it's free to file I-765 and I-131 for his case; thus its highly recommended to file both I-765 and I-131.

[mushroomspore 3,044]

20 minutes ago, Kathergarcb said:

 will he have to leave?? Someone helpppp 

Not unless you want to file a CR1 for him and wait another year or so for him to return to the US permanently.

[Ryan H 3,812]

**Moved from K1 Process & Procedures to Adjustment of Status from K Visas forum.  Hijack post removed.**

[C90 376]

No worries at all, he is legal as long as you did get married within 90 days (what you did) You can file AOS whenever you want, there is no rule yet that you have to file AOS within a certain time after marriage (USCIS wants to make a 6 month from marriage rule since there are people who are here for years on only a marriage without AOS, but that's not a rule yet  )

[geowrian 22,337]

19 minutes ago, C90 said:

No worries at all, he is legal as long as you did get married within 90 days

Not "legal"....after the 90 days, if AOS is not filed, they are unlawfully present like anybody else that overstays a visa.

But they can file for AOS based on the K-1 marriage at any point.

[C90 376]

13 hours ago, geowrian said:

Not "legal"....after the 90 days, if AOS is not filed, they are unlawfully present like anybody else that overstays a visa.

But they can file for AOS based on the K-1 marriage at any point.

They can't be deported for the fact that they didn't file AOS (assuming they didn't do anything to get a criminal record etc), so they are not unlawfully present or overstaying anything. It is absolutely recommended to file your AOS asap, since it will raise a lot of questions if you do it years after your marriage (and you might get denied and then deported). But since they got married a few months ago, she doesn't have to be afraid of any of the above.

[geowrian 22,337]

7 hours ago, C90 said:

They can't be deported for the fact that they didn't file AOS (assuming they didn't do anything to get a criminal record etc), so they are not unlawfully present or overstaying anything.

Incorrect. Can you please provide any source saying you either (let alone both) 1) don't acquire unlawful presence and 2) can't be removed?

I can provide documentation from the FAM as to what constitutes unlawful presence.

I can provide examples of people who have obtained a 3 or 10 year bar for overstay from a K-1 who married within 90 days but never applied for AOS and left the US after 180+ days.

 

If still in marital union (not just married), an IJ would almost certainly just say file for AOS.

Edited December 23, 2018 by geowrian

[C90 376]

On 12/22/2018 at 5:18 PM, geowrian said:

Incorrect. Can you please provide any source saying you either (let alone both) 1) don't acquire unlawful presence and 2) can't be removed?

I can provide documentation from the FAM as to what constitutes unlawful presence.

I can provide examples of people who have obtained a 3 or 10 year bar for overstay from a K-1 who married within 90 days but never applied for AOS and left the US after 180+ days.

 

If still in marital union (not just married), an IJ would almost certainly just say file for AOS.

There is nowhere on the USCIS website that states you have to file your AOS within a certain time. Yes, you should file AOS asap, I'm not arguing with that. Yes, people do get deported for filing way too late, but why would you file years after you enter? Usually because its a scam or you just want to enjoy the pro's of the USA. Is that ground for deportation? Yes.

If you have a good reason (financial is a very good reason) to file a long time after marriage and your marriage is legit, they won't deport you. I know people that are here for 7 years, never filed for AOS and never got deported. Should you file after 7 years without good reason why you didn't? Probably not. Can you leave the states if you didn't file for AOS? Absolutely not. (unless you don't wanna return of course)

 

Point is, her question was very simple: Do we get in trouble for filing a few months after marriage while the I-94 is expired. The answer is no. You are probably referring examples from people that are years in or are inadmissible because they did something that violated their visa. Filing a few months after marriage (even 180 days after) is not one of them, so those kind of stories are not applicable in her case. 

[DaveAndAnastasia 2,092]

1 hour ago, C90 said:

(financial is a very good reason)

Just a note here that finances are usually not a good reason to delay filing for AOS, or at least short-term cash flow problems aren't. Until your fiancé(e) gets EAD or a green card, he or she can't work. That's almost certainly going to cost you more in the long run than AOS fees. And you can pay fees at a USCIS lockbox by credit card.

[geowrian 22,337]

1 hour ago, C90 said:

There is nowhere on the USCIS website that states you have to file your AOS within a certain time.

Correct, you can file AOS based on the underlying K-1 status at any point during the same stay within the US so long as you married within 90 days. This could be within the 90 days or it could be 10 years later.

There is nothing on the USCIS (or DOS) website suggesting it is permissible to remain in the US after your I-94 expires and w/o filing for AOS. The period of unlawful presence, if any is accumulated before filing for AOS, is not a bar for AOS as the IR of a USC.

 

1 hour ago, C90 said:

You are probably referring examples from people that are years in or are inadmissible because they did something that violated their visa. Filing a few months after marriage (even 180 days after) is not one of them, so those kind of stories are not applicable in her case.

Some, yes.

One person a couple months ago filed 2 days after the 90 day period, broke up before AP was obtained, then returned home. Now he wants to visit the US again, but he is now permanently ineligible for an ESTA due to that overstay so he needs to obtain a tourist visa...which is actually not easy in most VWP-eligible countries. Had he filed for AOS 2 days sooner, he could just use an ESTA.

One person this year filed shortly over 180 days after their I94 expired. They had an emergency back home and returned to take care of that. They now not only need to start over completely with an I-130 for a CR-1/IR-1 visa, but they need an I-601 waiver for the 180+ days of unlawful presence...adding in another ~1 year to their timeline.

 

I get what you mean. In 99.x out of 100 cases, it's not an issue at all. But there are some cases where filing late can have some severe consequences as well. That info may or may not be relevant for the OP. It may or may not be relevant for somebody in the future in a similar situation who reads this thread.

 

Best wishes.

[beaubeast 38]

On 12/22/2018 at 11:29 AM, C90 said:

They can't be deported for the fact that they didn't file AOS (assuming they didn't do anything to get a criminal record etc), so they are not unlawfully present or overstaying anything. It is absolutely recommended to file your AOS asap, since it will raise a lot of questions if you do it years after your marriage (and you might get denied and then deported). But since they got married a few months ago, she doesn't have to be afraid of any of the above.

There was just a post   

    on which this was not the case.. better be safe than sorry.   Nobody will kick you out like coming to your house and deporting you but if something where to happen to you,  like this case, you are considered illegal here.

[Ontarkie 14,224]

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