Out Of Status

[ChristinaM 0]

For the OP, since we have digressed, YES! - once you have filed your paperwork and it has been received at the other end, you are still in legal status. The NOAs are the proof you have of that.

Sorry to have disrupted your thread, but I feel it's important to get it clear for the sake of others reading.

[pushbrk 12,883]

No. She does not become "pending" anything until she has filed the paperwork to become "pending".

That's like saying your status is "pending driver" before you've applied for your permit.

Once she has filed, she becomes "pending AOS" regardless of whether she has time left on her I-94.

The point of clarification was less for the OP than for the other people in the thread who said "I haven't filed yet and my I-94 has expired".

The only misleading statement I see is this one by you.

"That's not true, I'm afraid. Technically, once the K1 expires you are out of status if you have not filed for the AOS."

K1 expiration is meaningless once the visa holder enters the US. The visa expiration date refers to how long they have to enter the US after visa issue. Their entry starts a new 90 day clock of status derived from using the K1 visa. If their AOS filing is received before the I-94 expires, then they have status from both the AOS filing and the I-94 but I don't see how it makes any difference. They are "legal" either way. I addressed only the OP and her situation. She is not out of status.

They could actually be out of status from 90 days before the visa expires to 89 days after it expires, depending on how soon they use it to enter the US. Actually a very common error we see is exactly what you wrote. People think their status is good until their visa expires, and often they lose status before the visa expiration date. Please be careful.

Edited October 8, 2007 by pushbrk

[ChristinaM 0]

Now I understand - perhaps a lack of clarity on my part.

Once the stay authorised by the I-94 issued upon entry with the K1 visa has expired, one is out of status if they have not filed for AOS.

Is that better?

[pushbrk 12,883]

Now I understand - perhaps a lack of clarity on my part.

Once the stay authorised by the I-94 issued upon entry with the K1 visa has expired, one is out of status if they have not filed for AOS.

Is that better?

Yes and as you see above, that has zero to do with the expiration date of the K1 visa, as you originally asserted.

[ChristinaM 0]

Fabulous! Now you and I have sorted out that we were talking at cross-purposes and I apologise - that was my lack of clarity using "expiry of the K1" instead of "expiry of the authorised K1 entry". I had assumed since we were talking in the AOS forum we were past the K1 entry stage, but assumptions are dangerous.

Edited October 8, 2007 by ChristinaM

[WifeOHunkyJohn 2]

Let me see if I can expand on what my husband said. We waited over a year to file (successfully) for our AOS. That meant for 1 year I was out of status. According to multiple communications between USCIS, as well as senate and congress offices, I was not illegal because I entered legally, and in the transition between the I-94 expiring and the AOS being filed, I went into a gray area called "out of status". I was still legally allowed to be in the country, was not deportable because I had met the terms of the visa I came in on, but because there is no set time on the AOS for when to file, I was then in limbo. That meant that I didn't have any papers that let me get a California ID, nor did it mean I was legally allowed to work. But I was allowed to stay - big difference between being illegal and being out of status = illegals have not been given permission to stay. All I had to do, before filing the AOS application, was to carry around a copy of my visa and my marriage certificate and that would suffice... It might have been hard to explain to anybody who didn't fully understand the complexities of immigration but had they called USCIS, it would have been explained the same to them as it was to me.

Now, the problem with being in limbo is that you become a sort of "miscellaneous" entity. You are neither a lawful permanent resident, nor are you an illegal immigrant. It is because of this gray area that USCIS recommends not leaving yourself in that status for too long. Being unable to work and drive and have a hard copy of your status makes life difficult. If you are a lawful permanent resident, you have rights and protections in law. If you are an illegal you still have some rights, but when it comes to staying in the country, because you are unlawfully present, you are deportable. When you are in limbo, as "out of status" makes you, you still have some rights and protections, but holding onto them is hard because there is technically a gap in your paperwork, a sort of incompleteness if you like between your transition from K1 to AOS and permanent resident.

Had we known that it would take 13 months to get the green card, and had we been able to see the complexities and frustrations of having an "out of status" status, we would have done things very differently. But then they do say hindsight is 20-20.

If every person who came in on a K1 visa suddenly became an illegal alien the minute their I-94 ran out, their ability to adjust status would be severely compromised. There would be waivers that needed to be filed, and at best, anyone who came in on a K1 and didn't adjust status in time to beat their I-94 expiring, their husband or wife would have to file for a spousal visa (i-130) in order to adjust as, technically, being an illegal alien at the point of the I-94 expiring would, to all intents and purposes, make the K1 process redundant.

It is really unclear from the point of view of USCIS information why they don't have more specific guidelines for those applying to adjust status as the "illegal" versus "out of status" argument has been discussed time and time again. All I can say is, apart from what I outlined above, I had no problems adjusting status and received my green card from the California Service Center 13 months after I applied - it was the FBI namecheck that took so long. Had there been any point in that process that USCIS determined that I was an illegal alien because I had an expired i-94 and had not been timely in filing for AOS, they should, in theory, have cast aside my application the moment it was received, queried it or denied it, or in some way reacted to it if I were, indeed, an illegal. As they did not, and approved it without fuss, the "out of status" argument stands, in my books.

Personally I would recommend to everyone to file for AOS as soon as they can, simply because there are no guarantees on how long it will take to be completed, and having a "pending" status isn't as bad as having an "out of status" one. There is comfort in knowing the papers are filed, that someone is looking at them, and that the approval will happen at some point. Being out of status, from a psychological point of view, is a stressful place to find yourself (I did it for a year) and you always feel as though you have to justify or explain the immigration process and how "illegal" and "out of status" are not the same. Also, just being able to show a receipt from USCIS is enough to make you feel as though your position in the country is okay, albeit "pending", but being out of status brings the potential for conflict, long-winded explanations, and misunderstandings that are just more than is necessary to deal with when you also have the new country, new husband (or wife), new home, etc on top of all that.

So even though it was a bit longer than I intended it to be, I hope my explanation proves helpful.

And if anyone has any concerns or questions, feel free to PM me.

best wishes

Annie

[~*Maria*~ 1]

Excellent post Annie

[ChristinaM 0]

Thank you Annie - I appreciate you taking the time to explain.

What I don't understand is why we are willing - as an immigrant community - to accept that "out of status" means just that for K1s who don't adjust immediately, but we still call those who came many years ago and overstayed "illegal". I don't see the difference.

[pushbrk 12,883]

Thank you Annie - I appreciate you taking the time to explain.

What I don't understand is why we are willing - as an immigrant community - to accept that "out of status" means just that for K1s who don't adjust immediately, but we still call those who came many years ago and overstayed "illegal". I don't see the difference.

Thankfully, USCIS does see the difference, because they created the K1 scenario described by Annie.

[John & Annie 0]

Let me see if I can expand on what my husband said. We waited over a year to file (successfully) for our AOS. That meant for 1 year I was out of status. According to multiple communications between USCIS, as well as senate and congress offices, I was not illegal because I entered legally, and in the transition between the I-94 expiring and the AOS being filed, I went into a gray area called "out of status". I was still legally allowed to be in the country, was not deportable because I had met the terms of the visa I came in on, but because there is no set time on the AOS for when to file, I was then in limbo. That meant that I didn't have any papers that let me get a California ID, nor did it mean I was legally allowed to work. But I was allowed to stay - big difference between being illegal and being out of status = illegals have not been given permission to stay. All I had to do, before filing the AOS application, was to carry around a copy of my visa and my marriage certificate and that would suffice... It might have been hard to explain to anybody who didn't fully understand the complexities of immigration but had they called USCIS, it would have been explained the same to them as it was to me.

Now, the problem with being in limbo is that you become a sort of "miscellaneous" entity. You are neither a lawful permanent resident, nor are you an illegal immigrant. It is because of this gray area that USCIS recommends not leaving yourself in that status for too long. Being unable to work and drive and have a hard copy of your status makes life difficult. If you are a lawful permanent resident, you have rights and protections in law. If you are an illegal you still have some rights, but when it comes to staying in the country, because you are unlawfully present, you are deportable. When you are in limbo, as "out of status" makes you, you still have some rights and protections, but holding onto them is hard because there is technically a gap in your paperwork, a sort of incompleteness if you like between your transition from K1 to AOS and permanent resident.

Had we known that it would take 13 months to get the green card, and had we been able to see the complexities and frustrations of having an "out of status" status, we would have done things very differently. But then they do say hindsight is 20-20.

If every person who came in on a K1 visa suddenly became an illegal alien the minute their I-94 ran out, their ability to adjust status would be severely compromised. There would be waivers that needed to be filed, and at best, anyone who came in on a K1 and didn't adjust status in time to beat their I-94 expiring, their husband or wife would have to file for a spousal visa (i-130) in order to adjust as, technically, being an illegal alien at the point of the I-94 expiring would, to all intents and purposes, make the K1 process redundant.

It is really unclear from the point of view of USCIS information why they don't have more specific guidelines for those applying to adjust status as the "illegal" versus "out of status" argument has been discussed time and time again. All I can say is, apart from what I outlined above, I had no problems adjusting status and received my green card from the California Service Center 13 months after I applied - it was the FBI namecheck that took so long. Had there been any point in that process that USCIS determined that I was an illegal alien because I had an expired i-94 and had not been timely in filing for AOS, they should, in theory, have cast aside my application the moment it was received, queried it or denied it, or in some way reacted to it if I were, indeed, an illegal. As they did not, and approved it without fuss, the "out of status" argument stands, in my books.

Personally I would recommend to everyone to file for AOS as soon as they can, simply because there are no guarantees on how long it will take to be completed, and having a "pending" status isn't as bad as having an "out of status" one. There is comfort in knowing the papers are filed, that someone is looking at them, and that the approval will happen at some point. Being out of status, from a psychological point of view, is a stressful place to find yourself (I did it for a year) and you always feel as though you have to justify or explain the immigration process and how "illegal" and "out of status" are not the same. Also, just being able to show a receipt from USCIS is enough to make you feel as though your position in the country is okay, albeit "pending", but being out of status brings the potential for conflict, long-winded explanations, and misunderstandings that are just more than is necessary to deal with when you also have the new country, new husband (or wife), new home, etc on top of all that.

So even though it was a bit longer than I intended it to be, I hope my explanation proves helpful.

And if anyone has any concerns or questions, feel free to PM me.

best wishes

Annie

Thank you baby, that was a better definition than I ever would have put.

[WifeOHunkyJohn 2]

My understanding is that someone who comes in and "overstays" has not fulfilled the requirements of their visa, and the requirements are that they stay x amount of time for whatever purpose and then leave. The K1 terms are to come in to the USA and get married, after which they are eligible and subsequently file for adjustment of status.

An "overstay" and an "out of status" are not the same. An overstay results in someone not leaving the USA when they are supposed to. An out of status results in someone not filing an AOS before the I-94 expires.

That's my opinion of it anyway.

Edited to include: a K1 who does not get married within the 90 day window stipulated by their visa falls into the overstay category, if they stay in the USA after that 90 days expires. It's all spelled out in the K1 paperwork and when the K1 visa is issued. Anyone who comes in on a visa has "terms and conditions" that apply to that specific visa.

Edited October 9, 2007 by WifeOHunkyJohn

[pushbrk 12,883]

My understanding is that someone who comes in and "overstays" has not fulfilled the requirements of their visa, and the requirements are that they stay x amount of time for whatever purpose and then leave. The K1 terms are to come in to the USA and get married, after which they are eligible and subsequently file for adjustment of status.

An "overstay" and an "out of status" are not the same. An overstay results in someone not leaving the USA when they are supposed to. An out of status results in someone not filing an AOS before the I-94 expires.

That's my opinion of it anyway.

One is "out of status". The other is "out of status due to overstay". Many overstays are forgivable. Filing AOS after I-94 expiration is not an "overstay". K1 is a horse with a human head.

[John & Annie 0]

Thank you Annie - I appreciate you taking the time to explain.

What I don't understand is why we are willing - as an immigrant community - to accept that "out of status" means just that for K1s who don't adjust immediately, but we still call those who came many years ago and overstayed "illegal". I don't see the difference.

I understand exactly what you mean, but there is a difference.

According the the Field adjudicators manual the person adjusting status (family based) must:

Been inspected upon entry

File a proper application

Have an 'A' number available.

(I did this from Memory and will look it up tomorrow)

They do not look at how long the person has been in the country.

[WifeOHunkyJohn 2]

Overstays are not generally forgiven, I don't think. They can result in the person being barred from re-entry into the USA for a period of years, for example 10 years.

[pushbrk 12,883]

Overstays are not generally forgiven, I don't think. They can result in the person being barred from re-entry into the USA for a period of years, for example 10 years.

Right, they aren't generally forgiven but they are generally forgiven when the overstayer marries a USC.