What is my K1 wife's status?

[Purcari1984 25]

Hello all.  

 

My wife entered the country earlier this year on a K1 visa;  we have since wed, received a SSN and submitted our AOS application last week.  While we are awaiting her green card, what exactly is her legal status while in the U.S. during this time (or potentially if she left the U.S. and returned on an advanced parole document)?  

 

I'm only asking because we are having some trouble doing basic things like opening a bank account for her.  Many of the CSRs don't seem very knowledgeable in this area and the most consistent response is that only resident aliens are allowed to have accounts.  Since the K1 is a non-immigrant visa, did her status change once we got married (or when the 90 days on her visa is up)?

 

Thank you in advance.  

[Crazy Cat 41,836]

She has no actual legal status.  She has been granted authorized stay until the Adjustment of Status has been either approved or denied.  In other words, she is not currently accruing unlawful stay.  This article explains the difference pretty well, imo.

 

https://www.murthy.com/2018/12/17/differences-between-lawful-status-period-of-authorized-stay-unlawful-presence-2/

 

"

Period of Authorized Stay

Even if a foreign national is, for a period of time, not holding a lawful nonimmigrant status, s/he may be in a “period of stay authorized by the Attorney General” (i.e. period of authorized stay). One of the most common situations in which this occurs is when a properly filed application or petition to extend or change nonimmigrant status is filed with the USCIS on behalf of a foreign national."

 

"Another very common example of authorized stay is when a foreign national is present in the United States while an application to adjust status (I-485 form) is pending. An adjustment-of-status applicant who does not also have lawful nonimmigrant status (e.g. H or L) generally is considered to be in a period of authorized stay, as long as the properly filed I-485 remains pending."

Edited April 4, 2021 by Lucky Cat

[igoyougoduke 1,656]

Authorized stay by US attorney.

[Crazy Cat 41,836]

46 minutes ago, Purcari1984 said:

Since the K1 is a non-immigrant visa, did her status change once we got married (or when the 90 days on her visa is up)?

Her legal status changed 91 days after entering the US.  That is when her I-94 expired.

[Purcari1984 25]

20 minutes ago, Lucky Cat said:

She has no actual legal status.  She has been granted authorized stay until the Adjustment of Status has been either approved or denied.  In other words, she is not currently accruing unlawful stay.  This article explains the difference pretty well, imo.

 

https://www.murthy.com/2018/12/17/differences-between-lawful-status-period-of-authorized-stay-unlawful-presence-2/

 

 

Thank you Lucky Cat, that article was very informative and answered all my questions.  

[HRQX 4,145]

1 hour ago, Purcari1984 said:

because we are having some trouble doing basic things like opening a bank account for her.

Where are you right now? Usually it's recommended to visit banks such as Bank of America, Wells Fargo, etc. and specifically a branch near a college campus, etc. that likely has a lot of experience with opening accounts for foreign nationals. Some banks might ask for form W-8BEN form to be filled out. Others might provide form W-9 (for federal taxes your wife will be considered a "U.S. person" when you do taxes together next filing season https://www.irs.gov/pub/irs-pdf/fw9.pdf Page 2).

[Purcari1984 25]

1 hour ago, HRQX said:

Where are you right now? Usually it's recommended to visit banks such as Bank of America, Wells Fargo, etc. and specifically a branch near a college campus, etc. that likely has a lot of experience with opening accounts for foreign nationals. Some banks might ask for form W-8BEN form to be filled out. Others might provide form W-9 (for federal taxes your wife will be considered a "U.S. person" when you do taxes together next filing season https://www.irs.gov/pub/irs-pdf/fw9.pdf Page 2).

 

We are located in CNMI presently as I started an 15 month work contact here in January.  The only banks on the island are the Bank of Guam and Bank of Hawaii;  I'll check with them as they my have more experience with foriegn nationals just based on the demographics here.   Thank you for information regarding the additional forms.  We ae planning to file our taxes as married filing jointly for fiscal year 2021.  

Edited April 5, 2021 by Purcari1984

[Ryan H 3,812]

Moved from K1 Process & Procedures to Adjustment of Status from K Visas forum.

[Mike E 11,739]

20 hours ago, Purcari1984 said:

 

Thank you Lucky Cat, that article was very informative and answered all my questions.  

I thought it was clear as mud.

 

Her presence in USA as an alien continues to be legal/authorized/lawful due to her AOS being filed and no decision on that filing.

 

21 hours ago, Purcari1984 said:

I'm only asking because we are having some trouble doing basic things like opening a bank account for her. 

When we opened a joint account for my wife, the only thing Wells Fargo cared about was her passport and SS card.

 

Later she opened an individual account by herself at Bank of America. She might have used her California State REAL ID to do that. Not sure, as I wasn't there.

[Crazy Cat 41,836]

2 minutes ago, Mike E said:

Her presence in USA as an alien continues to be legal/authorized/lawful due to her AOS being filed and no decision on that filing.

Authorized stay is not a legal status.  It is neither a legal status nor accruing unlawful presence.  Once a non-immigrant's I-94 expires, they are out of status....

Edited April 5, 2021 by Lucky Cat

[Mike E 11,739]

2 minutes ago, Lucky Cat said:

Authorized stay is not a legal status.

Yeah well it isn't illegal status either.

 

A bit is either 1 or zero. A woman is pregnant or not pregnant.  Etc.

 

One is either in the USA illegally or legally. 

Edited April 5, 2021 by Mike E

[Crazy Cat 41,836]

3 minutes ago, Mike E said:

Yeah well it isn't illegal status either.

 

A bit is either 1 or zero. A woman is pregnant or not pregnant.  Etc.

Read the article.  It is clear to me.....and to the OP.  I guess you could argue with the attorney who wrote the article....😄  Maybe it's like a "hanging chad" from the 2000 election......"in between"....😄

Edited April 5, 2021 by Lucky Cat

[Mike E 11,739]

Just now, Lucky Cat said:

Read the article.  It is clear to me.....and to the OP.

I've read it.

 

If  junior engineers wrote such papers for me to review, I'd direct them to rewrite it, and suggest using a table or diagram that  visually compared each of the high level concepts the article fails to convey.

 

The article seems to be arguing that Lawful Status, Authorized Stay, Unlawful Presence, Status Violation, and Out of Status are distinct concepts or classifications, yet perhaps one can enjoy multiple such concepts / classifications at the same time.

 

if so, I would direct a junior engineer to produce a Venn diagram that showed this visually.

 

Without such a visual, I have determined the article to be  incomprehensible.

[HRQX 4,145]

6 hours ago, Mike E said:

I thought it was clear as mud.

Is the following excerpt from USCIS clear for you? https://www.uscis.gov/sites/default/files/document/memos/revision_redesign_AFM.PDF "As discussed in chapters 40.9.2(b)(2) and (3), there are situations in which an alien who is present in an unlawful status nevertheless does not accrue unlawful presence. As a matter of prosecutorial discretion, DHS may permit an alien who is present in the United States unlawfully, but who has pending an application that stops the accrual of unlawful presence, to remain in the United States while that application is pending. In this sense, the alien's remaining can be said to be "authorized." However, the fact that the alien does not accrue unlawful presence does not mean that the alien's presence in the United States is actually lawful."