How are you considered legal after K1 visa expiration and receiving Green Card?

[stag 51]

I was reading the instructions for adjustment of status; after K1 visa holder enters the US and marries, they apply for adjustment of status (green card). However, till actually receiving that green card how is the k1 visa holder considered a legal resident? Is it based solely on the fact that they applied for adjustment or is there another visa that is given till Green Card is received? To me it sounds like there are several months during which the green card application is in process and the 6 month duration of the k1 visa has expired (esp with longer processing times for Green Card). Any insight into this would be great, thanks.

[Letspaintcookies 2,310]

Your K1 is voided the moment you enter the US. You're then given a 90 day allowed stay. In that period you have a legal status. After that and until you get your greencard you don't have a legal status but you're authorized to stay while your application is processed. That's for the immigration side of it.

 

For the IRS you're a legal resident already and might also be for your county ( that varies by state as to when somebody is a legal resident ).

[SalishSea 17,987]

41 minutes ago, stag said:

I was reading the instructions for adjustment of status; after K1 visa holder enters the US and marries, they apply for adjustment of status (green card). However, till actually receiving that green card how is the k1 visa holder considered a legal resident? Is it based solely on the fact that they applied for adjustment or is there another visa that is given till Green Card is received? To me it sounds like there are several months during which the green card application is in process and the 6 month duration of the k1 visa has expired (esp with longer processing times for Green Card). Any insight into this would be great, thanks.

Several months?  Try TWO YEARS, lol.  Most green card interviews are taking that long now, nationally.

 

A properly and timely filed AOS (I-485) grants a period of authorized stay until a decision can be made following the interview.

[HRQX 4,145]

6 hours ago, stag said:

However, till actually receiving that green card

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."

5 hours ago, Letspaintcookies said:

For the IRS you're a legal resident already

Not for 2021 tax year since stag's fiancee doesn't meet the substantial presence test: https://www.visajourney.com/timeline/profile.php?id=378899 If they marry on or before Dec. 31 then they could elect "to treat the nonresident spouse as a U.S. resident." https://www.irs.gov/individuals/international-taxpayers/nonresident-spouse

Edited November 11, 2021 by HRQX

[stag 51]

42 minutes ago, Jorgedig said:

Several months?  Try TWO YEARS, lol.  Most green card interviews are taking that long now, nationally.

 

A properly and timely filed AOS (I-485) grants a period of authorized stay until a decision can be made following the interview.

Thanks for the responses everyone that clears it up for me.

 

Wow is it really that backed up?? Well at least during that process I'm assuming the beneficiary can get work authorization and also waiver to travel outside US?

[Letspaintcookies 2,310]

Just now, stag said:

Thanks for the responses everyone that clears it up for me.

 

Wow is it really that backed up?? Well at least during that process I'm assuming the beneficiary can get work authorization and also waiver to travel outside US?

Takes about 8 months these days for work- and travel permit. 

[SalishSea 17,987]

1 minute ago, stag said:

Thanks for the responses everyone that clears it up for me.

 

Wow is it really that backed up?? Well at least during that process I'm assuming the beneficiary can get work authorization and also waiver to travel outside US?

Yes, it is.  Even EAD/AP is taking around 8 months currently.

 

If you are trying to evaluate doing a K-1 vs CR-1, this is the main reason to favor CR-1.

Edited November 11, 2021 by Jorgedig

[stag 51]

3 minutes ago, Jorgedig said:

Yes, it is.  Even EAD/AP is taking around 8 months currently.

 

If you are trying to evaluate doing a K-1 vs CR-1, this is the main reason to favor CR-1.

I see, well my hope is the backup gets better, at least if fiance has work/travel authorization in 8 months that will be a easier. Is the travel authorization multiple entries into US or just one?

 

I've already gone with the K1, given the ability to start the process during covid and hence be together sooner. 

[HRQX 4,145]

12 minutes ago, stag said:

Is the travel authorization multiple entries into US or just one?

On Form I-131 the AOS applicant would select "More than one trip" https://www.uscis.gov/sites/default/files/document/forms/i-131.pdf Page 4

 

Also: https://www.uscis.gov/i-485

Filing Forms I-765 and I-131 with Form I-485

If you submit Form I-485 and pay the required fee, you do not have to pay an additional fee to also file Form I-765, Application for Employment Authorization, and/or Form I-131, Application for Travel Document, for advance parole. You may submit these forms together. If you choose not to file Form I-765 and/or Form I-131 with your Form I-485, then you must submit a copy of your I-797C, Notice of Action, (also known as your receipt) as evidence that you filed Form I-485.

[stag 51]

1 minute ago, HRQX said:

On Form I-131 the AOS applicant would select "More than one trip" https://www.uscis.gov/sites/default/files/document/forms/i-131.pdf Page 4

 

Also: https://www.uscis.gov/i-485

Filing Forms I-765 and I-131 with Form I-485

If you submit Form I-485 and pay the required fee, you do not have to pay an additional fee to also file Form I-765, Application for Employment Authorization, and/or Form I-131, Application for Travel Document, for advance parole. You may submit these forms together. If you choose not to file Form I-765 and/or Form I-131 with your Form I-485, then you must submit a copy of your I-797C, Notice of Action, (also known as your receipt) as evidence that you filed Form I-485.

Ugh thank you for the clarification - a lot of paperwork coming our way in due time! Lol

[Mike E 11,741]

With the passing of the REAL ID of 2005, Congress has explicitly stated that aliens may be issued REAL ID if and only if they have a “lawful status.”  To that end, the REAL ID says an alien with a pending adjustment of status application has a “lawful status”.  
 

See https://www.dhs.gov/xlibrary/assets/real-id-act-text.pdf 

“B) EVIDENCE OF LAWFUL STATUS- A State shall require, before issuing a driver's license or identification card to a person, valid documentary evidence that the person--
 

…

 

ix) has a pending application for adjustment of status to that of an alien lawfully admitted for permanent residence in the United States or conditional permanent resident status in the United States.”

 

 

 

[Letspaintcookies 2,310]

12 hours ago, HRQX said:

Not for 2021 tax year since stag's fiancee doesn't meet the substantial presence test: https://www.visajourney.com/timeline/profile.php?id=378899 If they marry on or before Dec. 31 then they could elect "to treat the nonresident spouse as a U.S. resident." https://www.irs.gov/individuals/international-taxpayers/nonresident-spouse

You're right. My wording was not correct.

[Britney868 184]

On 11/10/2021 at 7:59 PM, Jorgedig said:

Several months?  Try TWO YEARS, lol.  Most green card interviews are taking that long now, nationally.

 

A properly and timely filed AOS (I-485) grants a period of authorized stay until a decision can be made following the interview.

I’m in Dallas and filed AOS 02/2021. Biometrics 08/2021. “Case ready to schedule interview” 08/2021. I still haven’t received my GC interview while people that filed after me, and did biometrics in October in DFW are getting interviews. I don’t understand what’s going on. VERY FRUSTRATING!