Awkward legal status for K-1 while waiting for AOS

[David Jess 0]

After the K-1 visa expires (which it ALWAYS does), people are left in a legal limbo that most government agencies do not seem to know how to deal with, and they get discriminated against in some damaging ways. Imagine somebody with the following characteristics.

• A person legally enters the USA with a K-1 visa
  
• Marries the sponsor within 90 days
  
• Applies for adjustment of status (AOS) for permanent residency
  
• But does not apply for early paroll or employment authorization
  

The case is the same for somebody who DOES apply for the employment authorization and is still waiting for it.

During the interim waiting for permanent residency status, agencies treat her like she is illegally present in the USA. More specifically, when they do not blurp that out, they say that they cannot verify her legal presence using their policies and procedures.

It is clear that she is legally present in the USA. The USCIS does not send nice NOA letters to people at their current address who are not legally present. (I personally beleive that a NOA letter should be enough evidence for agencies that require legal presence in the USA.)

I beleive she also has legal immigration status (that special status given by the US Attorney General to K-1 entrants who have applied for AOS and have received a NOA letter saying so).

She has not been able to get in-state tuition at Mesa Community College because they are telling her that they are not able to verify her legal presence in the USA with their current procedures. They have already admitted that she qualifies under both AZ laws that apply. One was made effective in 2006 by the passing of Prop. 300, and says that only people legally present in the USA can receive in-state tuition. The other says that a person who marries a certified resident is also considered a resident (as long as they otherwise have legal citizenship or immigration status).

After she gets her permanent residency later this year, all these problems will go away, but during the interim it really bothers me that things are so opaque for 2 intelligent people: a US citizen and his spouse.

McClintock High School ESL courses

With McClintock High School, we had NO problem. They accepted her Bank of America Visa bank card, her MCC student ID card, and her marriage certificate.

With the government agencies, we have not yet waited through an entire line, because that generally requires taking off work for a day, and I am the kind of person who likes to know in advance what the requirements are before getting my 5 minutes with a stressed-out employee. The requirements are very opaque, and I can not get anybody to tell me on the telephone what they require for proof, everybody saying it is only up to the person in the window.

Social Security number

With the Social Security Administration, we see on their websites the statement that K-1 entrants ARE legally authorized to work in the USA. Regardless of whether that is true or not, it is impossible to get them to say what documentation they will accept. They will apparantly not accept the K-1 visa since they "only accept non-expired documents".

Driver's license

With the AZ Department of Transportation, they say they accept a K-1 visa entry stamp, but do not say if they will acecpt an expired one (I have a feeling we would have good chances there if we took in the Marriage certificate, the bank card, the school ID, the passport, visa, entry stamp, and everything we have, but I am not willing to take the day off work to find out.) Their website also says that the applicant is REQUIRED to provide their social security number, but the SS card is not on the list of required documents. I have a feeling that means only if they have one, but it is left ambiguous whether they have to actually have one or not.

COBRA insurance continuation

We wanted to continue insurance for Valéria but not me (because I am covered from my new job), but the COBRA continuation service company said we would have to send in an application for verification of Valéria's legal presence in the USA, and get an answer within 60 days. We know from past experience that sending in a request without full knowledge of the documentation requirements is an invitation for a long chain of confusing and awkward and inconsistent messages (basically the snailmail runaround). So, knowing that was a nightmare route, we chose to continue for both of us instead--then the check was not done (but we had to pay for unnecessary insurance).

List of agencies that require legal status

Agencies that require legal presence in the USA and legal immigration status:

Social security administration (plus right to work)

Agencies that require legal presence in the USA:

• Mesa Community College (for in-state or in-county tuition rates)
  
• Arizona Department of Transportation (for driver's licence, permit, or state ID)
  
• COBRA insurance continuation service company
  
• McClintock High School (for adult education program participation)
  

One more particularly interesting case was the USCIS itself, at the fingerprinting interview. The instructions clearly listed what ID she needed to bring. So did their poster on the wall. And we followed the directions explicitly, bringing in all her notice of action letters (NOAs) and her passport. But the guard would not accept her passport saying it was in her maiden name, and we would have to bring the marriage certificate (and make a new appointment), even though it WAS not even listed on their acceptable documentation. The instructions for applying for the AOS also did not say what name to use, so we said why don't we just change the application to her maiden name? No legal name change had been performed that we could see. They said they WOULD take that but they STRONGLY recommended against it saying it would trigger suspicions that we are not really married. Opaque to the hilt. How many tens of thousands of K-1 entrants are there? And they cannot yet put in clear instructions telling them which name to apply in and what documentation to bring as proof of the new name? (The guard said it was common sense. Hmmmph. If it is so easy to know then you can put it in the instructions, then, can't you, Uncle Sam?)

What are these laws requiring proof of legal presence really all about?

Do they have to attack every single possible person illegally present, even if they are showing in good faith that they are legally present? Wouldn't it be enough to limit services only from people who do not have credible evidence? My personal belief is that the new law about in-state tuition is supposed to limit people in the country illegally (the group of 12 million or so), and that any credible evidence (such as a NOA letter) should be accepted. Valéria has been told by several people in various departments that she is not eligible because she "doesn't have her papers", "isn't documented", and at least 2 times she has been told "because you are illegal". So, I know it is discrimination based upon non-citizenship (very closely related to national origin, etc.) It makes it hard to plan the semester, but it will resolve when she she gets her permanent reseident card. So, I am mostly just interested in improving the situation for everybody else.

Please do let me know if you can clarify the requirements of these agencies for an expired K-1 waiting for AOS, or if I can help you understand these issues more clearly for your own cases.

David Jess Borough

[Ladylethal 12]

A person who entered legally with a K1, and has filed for the AOS is not illegaly present in US, it's simply out of status, which doesn't mean the same thing.

[YuAndDan 153]

We are is the same status, I-94 expired, waiting for AOS and did not bother with EAD or AP. My wife is out of status but is legaly present which is proven by the NOA1 letter for AOS.

Also Note: The Visa expires the moment it is used to enter the country, the I-94 expires 90 days later.

[David Jess 0]

A person who entered legally with a K1, and has filed for the AOS is not illegaly present in US, it's simply out of status, which doesn't mean the same thing.

Thank you for considering the case. You are right. She is clearly legally present in the USA. (What is funny is that even Mesa Community College is now admitting that she is--and the new law only limits tuition subsidies to people who are not legally present in the USA--yet they still cannot budge because it is not the law they follow but their departmental meetings, written procedures, and computer programs, which say that somebody who is waiting for an AOS is not eligible because they are in a pending status--something the law does not say ANYTHING about).

To clarify what it means to be illegally present, out of status, or in status, I read on a government website (sorry to not have the source at the moment) that she is only out of status between the expiration of the K-1 visa and the receipt of the NOA letter validating the application for NOA. Then, she has a "special status" given by the US Attorney General.

[payxibka 10,045]

Not only does the SSA not accept expired documents, for a K-1 holder the SSN MUST be applied for 14 days before the I-94 expires... No exceptions.

Edited July 18, 2007 by fwaguy

[David Jess 0]

Not only does the SSA not accept expired documents, for a K-1 holder the SSN MUST be applied for 14 days before the I-94 expires... No exceptions.

Thank you for your thoughtful reply. It would have been very good to know the requirements all in advance, but what we found was that the various government agencies are TERRIBLE at coordinating communication between each other. We saw statements saying she could get her SS immediately at some airports, that she could get an employment authorization (EAD) by walking into the USCIS at some local service centers, that some SS agencies could not accept a K-1 entry stamp that is too new or too old (as you are saying).

It is hard to remember back that far, but something stopped us from going to the SS, and I forgot what it is now, but I am sure that it was inconsistent information between the agencies (and even within the same agency). We probably should have gone, but we did not. Now we are in this special status. And it is this special status that is so interesting, and it is what I want to talk about. This thread is for people who are in that status: K-1 expired, waiting for AOS, and they want to get state and federal services like SS number, driver's license, in-state tuition, adult education, babysitting.

I will post a sub-topic just about the new laws in Arizona that limit services to people present in the USA illegally, and I will list the exact references to the new laws.

Meanwhile, I thought of another interesting encounter we had:

IRS

With the IRS, since she did not have an SS number, we had to apply for an individual taxpayer ID number (ITIN). The IRS publication said we could go into any local IRS office and apply for it. However, when we got there, there was a little sign saying ITINs could only be applied for for 4 hours in the AM on Tuesdays and Thursdays. We had already taken the day off work to get it done. I think that little sign is (or should be) illegal! I can understand it, of couse, if they really cannot process them at other times (a certain employee has to do it, etc.), but then it must be in the instructions that you have to call to find out, right? --djb

[Anonima 0]

HI everyone!,

I am in the same situation, my visa and I-94 are expired, and I am waiting for the first AOS notice from the Immigration Office.

Somebody know if I can travel into U.S with my visa and I-94 expired?. Of course my passport is not expired.

Thanks a lot!!

[rebeccajo 14]

The following text from the CFR might be useful:

http://a257.g.akamaitech.net/7/257/2422/26.../8cfr245.22.htm

Edited July 19, 2007 by rebeccajo

[rebeccajo 14]

Also this:

http://ecfr.gpoaccess.gov/cgi/t/text/text-....1.1&idno=8

[caybee 21]

Driver's license

With the AZ Department of Transportation, they say they accept a K-1 visa entry stamp, but do not say if they will acecpt an expired one (I have a feeling we would have good chances there if we took in the Marriage certificate, the bank card, the school ID, the passport, visa, entry stamp, and everything we have, but I am not willing to take the day off work to find out.) Their website also says that the applicant is REQUIRED to provide their social security number, but the SS card is not on the list of required documents. I have a feeling that means only if they have one, but it is left ambiguous whether they have to actually have one or not.

Might be worth a shot to e-mail this question to the AZ Department of Transportation (mvdinfo@azdot.gov). It would save you a wait in line. The person who answers the e-mails for the SC DOT has been very helpful and courteous, answering questions I couldn't find anywhere on their website. I hope it's the same for AZ. They do say to allow ten days for an answer.

I share your frustration. We face many of the same hurdles. Good luck.

[caybee 21]

HI everyone!,

I am in the same situation, my visa and I-94 are expired, and I am waiting for the first AOS notice from the Immigration Office.

Somebody know if I can travel into U.S with my visa and I-94 expired?. Of course my passport is not expired.

Thanks a lot!!

Which visa?? Have you left the U.S. and wish to reenter?? Do you have advance parole?

Or are you in the U.S. and wish to travel within the U.S.?

[caybee 21]

HI everyone!,

I am in the same situation, my visa and I-94 are expired, and I am waiting for the first AOS notice from the Immigration Office.

Somebody know if I can travel into U.S with my visa and I-94 expired?. Of course my passport is not expired.

Thanks a lot!!

Which visa?? Have you left the U.S. and wish to reenter?? Do you have advance parole?

Or are you in the U.S. and wish to travel within the U.S.?

Sorry, now I see the K-1 in your timeline. You cannot travel into (reenter) the U.S. unless you received your green card or advance parole before you left the U.S. Hope you are still here.

[athena_ny 1]

That 'special status for K1s' applies to all visa types who have applied to adjust status. Once my husband got his NOA he was pending adjustment, and with status even though he'd overstayed his permission on his B2.

[nane1104 146]

If you get married within the 90 day window after arrival and file for AOS (not neccessary in the 90 day window, but recommeded) you are NOT illegal and not out of status either..you are a PENDING CONDITIONAL PERMANENT RESIDENT (conditional because you haven't been married for more than 2 years). So, nothing really akward about it...it gets akward when you get married but don't file for AOS.