How long can a K1 stay in the US after submitting for AOS/485?

[RoddyDavey 1]

Got approved for K1 earlier this year, fiance entered and we're now married. I'm just about ready to submit the whole AOS packet for her (485, 131, 765, 864) but I haven't been able to find an adequate answer to this question. If she's allowed to be in the US for 90 days, what has to change to allow her to stay? Will they process her work authorization that quick and will that give her the authority to stay? Or do I need to file something else?

 

Sorry if this is confusing, seems like a donut hole you don't want to get caught in.

[powerpuff 6,715]

Moved from K1 Forum to AOS from K1. The OP is past K1 visa process.

 

It’s quite simple. Once your fiancé files for I-485, it gives her authorized stay in the US until your application is approved or denied. 

Edited August 1, 2021 by powerpuff

[RoddyDavey 1]

I really appreciate the answer, I haven't been able to find this information anywhere. Does USCIS hide this, or am I just stupid? haha

[HRQX 4,145]

8 minutes ago, RoddyDavey said:

I really appreciate the answer, I haven't been able to find this information anywhere.

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."

[Lucky2Lucky 2,526]

Adjustment of status is the process that you can use to apply for lawful permanent resident status (also known as applying for a Green Card) when you are present in the United States. This means that you may get a Green Card without having to return to your home country to complete visa processing.

https://www.uscis.gov/green-card/green-card-processes-and-procedures/adjustment-of-status

 

It doesn't exactly spell it out but as you can see you apply for adjustment of status while living in the United States.. therefore you have a status during that time. 

[HRQX 4,145]

3 minutes ago, Luckycuds said:

therefore you have a status during that time. 

Not a status but a period of stay "authorized" by the Secretary of Homeland Security. https://www.uscis.gov/sites/default/files/document/memos/revision_redesign_AFM.PDF

[Lucky2Lucky 2,526]

2 minutes ago, HRQX said:

Not a status but a period of stay "authorized" by the Secretary of Homeland Security. https://www.uscis.gov/sites/default/files/document/memos/revision_redesign_AFM.PDF

Thank you for the correction. Wrong choice of wording; and I realize wording matters. 

[Crazy Cat 41,923]

Here is a site which I, personally,  think explains the difference between lawful status, authorized stay, unlawful presence pretty well.

 

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

[mushroomspore 3,044]

14 hours ago, RoddyDavey said:

I really appreciate the answer, I haven't been able to find this information anywhere. Does USCIS hide this, or am I just stupid? haha

They don't hide it exactly but they kinda do. Please please PLEASE also be aware that the intending immigrant should actually stay inside the USA until they receive Advanced Parole (I-131). An approved Advanced Parole will appear on the Employment Authorization Document (EAD). It will say at the bottom, "SERVES AS ADVANCED PAROLE". They can then use this to re-enter the USA while their AOS is still pending. In the most technical terms, an intending immigrant can leave the USA without AP. However, they will not be allowed back in and their AOS will be deemed abandoned due to leaving without AP. It says so right in the I-131 instruction packet, PAGE 1: https://www.uscis.gov/sites/default/files/document/forms/i-131instr.pdf

 

So just be aware!! Do not leave the USA or try to plan to leave until AP is received.

[Mike E 11,739]

16 hours ago, RoddyDavey said:

Got approved for K1 earlier this year, fiance entered and we're now married. I'm just about ready to submit the whole AOS packet for her (485, 131, 765, 864)

 

Please update your timeline. 
 

Quote

 

but I haven't been able to find an adequate answer to this question. If she's allowed to be in the US for 90 days, what has to change to allow her to stay?
 

She should file I-485 before her I-94 expires to avoid a break in her record of authorized presence. 
 

Quote

Will they process her work authorization that quick

You are more likely to win one of the lower tier state lottery prizes 

 

Quote

 

 

and will that give her the authority to stay? Or do I need to file something else?

She needs to file I-485 before her 90 days are up.  
 

Quote

 

Sorry if this is confusing, seems like a donut hole you don't want to get caught in.

Always best to read up on the entire process before starting  it.  Better late than never:

 

https://www.visajourney.com/guides/k1-fiance-visa/

https://www.visajourney.com/guides/adjustment-of-status-k1-k3-visas/

 

 

https://www.visajourney.com/guides/k1-fiance-visa-flowchart/

 

 

Edited August 2, 2021 by Mike E

[Ed&Midori1031 330]

21 hours ago, RoddyDavey said:

Got approved for K1 earlier this year, fiance entered and we're now married. I'm just about ready to submit the whole AOS packet for her (485, 131, 765, 864) but I haven't been able to find an adequate answer to this question. If she's allowed to be in the US for 90 days, what has to change to allow her to stay? Will they process her work authorization that quick and will that give her the authority to stay? Or do I need to file something else?

 

Sorry if this is confusing, seems like a donut hole you don't want to get caught in.

Your spouse will be considered "out of status" regardless, but once you do file the AOS, consider it the "safe zone" as long as they dont get into serious trouble, like arrest or anything. Just have to wait for a final answer once AOS has been submitted and approved. 

[arken 4,197]

19 hours ago, Mike E said:

She needs to file I-485 before her 90 days are up.

It is recommended that one files i485 before i94 expiry (90 days) but can still be filed after 90 days as well.

[Mike E 11,739]

2 hours ago, arken said:

It is recommended that one files i485 before i94 expiry (90 days) but can still be filed after 90 days as well.

Extremely bad advice.  You know very well what can happen. Really surprised you would suggest it.  

[arken 4,197]

26 minutes ago, Mike E said:

Extremely bad advice.  You know very well what can happen. Really surprised you would suggest it.  

Stating the fact is not a bad advice. Some people miss filing i485 within 90 days for some good reasons, it's not the end of the world, one can still do AOS without any issues.

 

33 minutes ago, Mike E said:

 You know very well what can happen.

Anything can happen between i94 expiry and AOS receipt date if filed late. Chances of getting COVID and dying is higher than chances of getting deported.

 

 

[Mike E 11,739]

And due to VJ ToS I am out.