AOS before or after I-94 expires

[beatlesrebel 0]

Back to the original question, I wouldn't worry about RFEs from an "Oh no, we won't have time to answer" perspective. They give you nearly 3 months to respond to an RFE. Given that our rep got back to us in a week, that's ample time. Worst case, if they haven't responded by the time you get to the two month mark, you can start looking for a CS and make an appointment. There will be LOTS of time before deportation (don't worry, you're not likely to get THAT far!). First there's the RFE, and that takes 3 months. If, somehow, you don't answer that, you get a denial letter, and that process can go on for at least another month if not more. Once you respond, the clock starts all over again.

Ah! Thanks for the info, Nik+Heather! I just want to be fully prepared to face an RFE when he gets here..just in case. I didn't realize they gave you 3 months to respond, good to know!

[John and Camie 39]

We didn't file AOS before our I-94 expired. Not because we didn't WANT to, but because I was UNEMPLOYED and couldn't afford to. Instead, we worked on our AOS and saved up for the fee while I looked for work.

There are so many people on VJ going through this exact nightmare. To "my people:" you're NOT going to be thrown in a wagon and shipped back to your native country if you don't file before the I-94 is up. Don't let anyone scare you. Save up for AOS, work on your AOS, and file it when you CAN. If you already have the money (just no job), then get a co-sponsor, collect your forms/docs and file.

Things happen. You file when you file, just make sure you stay on top of it; don't let it fall by the wayside, no matter how depressing your unemployment gets. Working on our AOS was one of the things (besides each other) that kept our spirits up.

[mox 298]

You're right, it doesn't. And having witnessed the confusion that ensues when a responder addresses a public thread with information given through PMs (case example being mcat and Gary and Alla recently) I don't normally advocate it. But what it does do is allow the poster to go back and either further explain what was meant, to clear up confusion. I sincerely mean that I don't profess to having all the answers all the time, frequently quite the opposite. But do you really need to be so patronizing and rude in your manner of going about it? I don't want 'rainbows and unicorns' but the mockery is uncalled for.

The "mockery" (it's more like bitter sarcasm but whatevs) is called for because it seems to be the one sure method of denouncing misleading and sometimes dangerous advice. It's nothing personal really, just that you're the latest in an increasing problem on this site, which is people who have read and tried to absorb a lot of information in a short time, and think they have a grasp on the process that they really don't. I mean, I really don't much care for some of the dickishness you see from the likes of (for example) pushbrk, but I can kinda see where he's coming from sometimes, other than the times that he's just being a downright jackass because he deigns to toy with the puny humans who cannot possibly comprehend the enormity of his enormous brain. It's SO frustrating to see misleading information handed out as factual information, especially when opinion is stated in a way that could be construed as factual, the problem is getting worse all the time, Ewok seems to give a flying sh*t about it, and so I just don't care to be civil about it anymore. Your heart may be in the right place, but this is not the arena to lead with your heart, unless you just want to post "congratulations!!!" posts in the K1 status forum. Somebody who's been led to believe they have to file before their I-94 expires could be subjecting themselves unnecessarily to a financial hardship that could easily be put off for another month or two or five. It may not be advisable to wait such a long time, but it's important that people know exactly what their options are, and much less important that they know what your opinion is.

And this is my point about Arizona. Her fiance is far more likely to encounter one of these than if Beatlesrebel was living up in the Lakes district of New Hampshire. I've travelled to and from the US, on a VWP for 16 years, to at least 9 different states. The only place I've ever come across these kinds of checks is in Arizona, on several occasions, over the course of the past 2 years. Granted, I've been travelling around the more southern part of the state, but who the hell wants to run the risk of being carted off in a meat wagon, handcuffed and thrown in a detention center with the threat of deportation looming over their heads? Even knowing they wouldn't be deported, it would be a pretty vile experience, and easily avoided!

Yeah, it would suck. Not being hauled off the street by poorly trained officers is a definite advantage of having a green card. AOS is a good thing. It opens a lot of doors, and a good argument could be made that filing AOS *should* be required. I highly encourage everyone who has come to this country on a K1 to file as soon as their situation allows, but not based on an arbitrary date such as the one that's stamped in their I-94.

In short, I completely appreciate that you are not liable to deportation if you pass your I-94 expiry date without filing. And if this is the way what I wrote came across, then apologies. What I should have clarified is that the only way of ensuring that you do not have your status ever called to question is by filing before your I-94 expires.

This is what I'm talking about. How do you mean "calling into question?" It's not a legal term, so the answer is "anybody 'calling into question' your legal status has either not been trained properly or you haven't presented your I-94, passport, and marriage certificate to the officer." You might as well be saying "if you don't want a police officer in downtown Chicago to pull you over, then don't be black as early as possible." Problems happen even though it's not illegal to be black or out of status, but that's not a legal basis for anything.

I'm not trying to pick holes in your argument, nor bones with you, Mox. I just don't understand, if it's such a non-issue, why the repeated advice all over the forum from seasoned filers is 'just avoid going 'out of status' and file before your I-94 expires.'

Because these seasoned filers don't understand the law and are just parroting what they've been reading from other filers parroting from what they've read from what other people have been parroting. It's why I'm coming down so hard on this. You'd be surprised how much "common knowledge" that's been floating around VJ is complete and utter bullsh*t.

However, if you are a K-1 entrant, married within 90 days and not a pending LPR since you haven't filed your AOS before your I-94 expires, what are you, if not 'out of status'? The (unexpired) F-1 adjuster is still legally present, but you're effectively in a no-man's land. Whilst being 'out of status' is not grounds for deportation, since you can't abandon something that hasn't been filed, why is there no connection between the I-94 and the AOS in terms of ensuring that you status remains current?

There's nothing inherently illegal about being out of status. Being out of status just means you haven't adjusted status. Hell, you're out of status the moment you pass the POE. It's not really a gray area, it is what it is. The I-94 has nothing to do with status. The timestamp on the I-94 only indicates the date you have to either be married to the petitioner or gtfo. The K1 recipient's passport, I-94, and marriage certificate is the only documentation necessary to stay in the country.

[Nik+Heather 121]

Guys, this is getting seriously off topic for this thread. Mox, if you feel as though there is some legal basis for your assertions that legal status doesn't end when the I-94 expires unless it's picked up by the pending adjustment, could you open a thread so we can discuss it? If you can't be bothered to take it to a new topic, at least stop going on and on about it in a community update/tracking thread. As the forum description states, and the way it is moderated, it really isn't a place for the really heavy lifting sort of debates that are going on here.

[Ovaltine Jenkins 5]

The question was raised in this thread so perhaps it's good to discuss it here.

[beatlesrebel 0]

The K1 recipient's passport, I-94, and marriage certificate is the only documentation necessary to stay in the country.

So, if for some reason we don't file for AOS right away, do we need to send copies of these 3 things somewhere to prove we've gotten married? Or do you just wait to send that documentation in with your AOS? I'm confused...

[Nik+Heather 121]

The question was raised in this thread so perhaps it's good to discuss it here.

This question is raised EVERY DAY in so many threads. Why not dedicate one to the discussion? If it's right, why not more widely advertise it, to correct the "common knowledge" error?? I mean, how many people read this thread looking for that info, but how many more would read one on the main AOS board? It seems pretty important. Maybe we can get it pinned, and if you're all REALLY concerned about correcting this, it could be pinned for time immemorial for future AOSers to read.

Edited February 23, 2010 by Nik+Heather

[mox 298]

Guys, this is getting seriously off topic for this thread. Mox, if you feel as though there is some legal basis for your assertions that legal status doesn't end when the I-94 expires unless it's picked up by the pending adjustment, could you open a thread so we can discuss it? If you can't be bothered to take it to a new topic, at least stop going on and on about it in a community update/tracking thread. As the forum description states, and the way it is moderated, it really isn't a place for the really heavy lifting sort of debates that are going on here.

No, it's not off-topic and I think people here are intelligent enough to read a couple conversations at a time. It's sort of an internet/homosapein thing. Also, you are not the internet robocop of me. Expect lolcat posts in 3...2...1...

So, if for some reason we don't file for AOS right away, do we need to send copies of these 3 things somewhere to prove we've gotten married? Or do you just wait to send that documentation in with your AOS? I'm confused...

You don't need to send it anywhere. It's just something you need to be able to provide if you're ever asked by immigration to prove status.

[Nik+Heather 121]

No, it's not off-topic and I think people here are intelligent enough to read a couple conversations at a time. It's sort of an internet/homosapein thing. Also, you are not the internet robocop of me. Expect lolcat posts in 3...2...1...

I see, so it's not REALLY about making sure the right info is out there, it's about targeted bullying in a back corner of the forum. Well, I'll post a new topic and we'll see. Actually, it seems like a good thing to discuss on an immigration forum.

[mox 298]

I see, so it's not REALLY about making sure the right info is out there, it's about targeted bullying in a back corner of the forum. Well, I'll post a new topic and we'll see. Actually, it seems like a good thing to discuss on an immigration forum.

Well then you see what you want to see. Have fun.

[SunDrop 59]

Typed a response that was conclusive, but actually think that even with all the bitter sarcasm there is some educational merit to having this as its own thread.

I'll email a mod and ask if it can be moved, if only to clean up the AOS thread again..

Sorry folks!

[mox 298]

As long as the prune starts at this post:

http://www.visajourney.com/forums/index.ph...t&p=3736472

I have no objections to it being turned into its own thread.

Edited February 23, 2010 by mox

[Kathryn41 3,205]

This topic has been split from the 2010 UK AOS thread to make its own thread. I will ask that you stop the mocking, bullying and insulting types of comments that have been made in this thread and discuss this topic with courtesy and respect.

Moderator's hat off (comments made personally and not as a moderator):

The I-94 is an important document. It is the document that is used to determine the legal status of an arriving or visiting non-immigrant in the US. The K-1 visa is a non-immigrant visa good for a one time entry to the US. Once the individual has entered the US, they receive the I-94. The I-94 designates the length of time of their legal stay in the US. Visitors also receive I-94s or I-94Ws. Even though a visitor from a certain country may be allowed to stay up to 6 months, the I-94 states how long they are actually allowed to stay in the US. If they 'overstay' the I-94 they are out of status and now illegally present in the US. This is different than someone making an illegal entry but their presence is just as illegal. They have no legal status - that is what 'out of status' means.

K-1 visa entrants need to remember that their 'immigration' is a 2 phase process - permission to enter the US, and permission to remain in the US. The K-1 is their permission to enter the US. The AOS is their permission to remain in the US.

One of the conditions that they agreed to when they applied for and accepted the K-1 was that they would get married within 90 days or leave the US. The I-94 designates when those 90 days are up. Their legal status granted by the I-94 always expires at the end of those 90 days. To remain legally in the US beyond the date designated by the I-94, K-1s need to complete part 2 of the Immigration process - applying to Adjust their status from a non-immigrant to an immigrant. They are allowed to do this based upon satisfying the requirement of their K-1 entry - marrying their sponsor within 90 days. Once they apply to adjust status and the application is accepted, their legal status in the US changes to become 'AOS applicant pending decision'. If they do not marry their sponsor within the time period designated by the I-94 they are not allowed to adjust status based upon the K-1 entry. If they end up getting married after the 90 days, their sponsor needs to request 'permission' to allow them to become an immigrant all over again by filing an I-130 Petition for a family member.

Anyone can choose not to complete the process if they wish. There are, however, consequences to such choices. The consequence of failing to file for AOS after entry on a K visa means that your status expires and - just like the visitor who fails to leave at the end of the date desiginated by their I-94 - they are illegally present in the US and can be deported. Entering the US on a K-1 visa and getting married does not provide you with any extra protection when you fall out of status. You are just as much out of status as if you were a visitor. You may be allowed, however, if 'caught' to apply immediately for AOS and thus stay any deportation orders.

There are also consequences of being out of status. If you are out of status for 180 days before you decide to apply for permission to remain in the US as an Immigrant (eg. adjust status) and leave the country before you become a permanent resident, you will be denied re-entry to the US and incur an automatic 3 year bar to re-entry - a penalty for being out of status. If you are out of status for a year before you decide to apply to adjust status and leave the country before becoming a permanent resident, then that penalty is 10 years. The start date for those accumulating out-of- status days is the date the I-94 expires.

Those of us who chose to use the K-1 to enter the US do so because we want to live in the US with our American husband or wives. If we do not intend to complete the full immigration process then we are doing ourselves and our partners a grave disservice - forcing each to live 'outside' of the legal protections granted by legal residency, facing the daily fear of 'consequences' by failing to complete all of the required steps for legal residency in the US, and adding unnecessary stress to an already stressful situation. All this is so easily prevented by filing to adjust status from non-immigrant to immigrant, ideally before the status granted by the I-94 expires.

The I-94 is an important document. It's expiry date is significant. Failing to complete the process in a timely manner does have consequences. You may or may not end up suffering the effects of those consequences, but I, for one, would never want unnecessarily to subject myself or someone I loved even to the possibility of those consequences, let alone the actuality.

Edited February 24, 2010 by Kathryn41

[Rebecca Jo 1,962]

- You do NOT have to file AOS before your I-94 expires. The expiration on your I-94 is the date that you are required to be married by. It has zero to do with AOS. You could file AOS 20 years after the I-94 expires if you wanted to, and not a single USCIS person is going to use the word "I-94" in the ensuing discussion, unless it's something like "so did you have any problems with the traffic on I-94?"

That's an interesting statement.

Because an alien can't even file to adjust without sending in a copy of their last I-94.

[Rebecca Jo 1,962]

For those of you who think filing before the expiry of the I94 is unimportant, I would direct you to this PDF from the former INS.

Some pertinent excerpts are clipped below the link.

It's not hard to find dozens of others.

http://www.ansarilawfirm.com/docs/Interpre...ney-General.pdf

"Some practitioners have argued that the above scenario creates, in effect, a “bridge” of continuing status stemming from the initially timely filed COS application such that an alien can eternally avoid becoming unlawfully present as long as they have a pending EOS or COS application with the Service. The essence of their argument relies on their misinterpretation of “period of stay authorized by the Attorney General” as equivalent to status. They argue that if the alien is in “status” because they have been granted “a period of stay authorized by the Attorney General,” then that alien should be able to extend his or her stay or change status. A review of the relevant statutes and regulations indicates that the “bridge” of continuing status analysis is an incorrect and improper interpretation of the relevant statutes, regulations and INS memos on unlawful presence (see Memorandum for Regional Directors from Johnny N. Williams, Executive Associate Commissioner (Office of Field Operations) (“6/12/02 Williams memo”); Memorandum for Regional Directors from Michael A. Pearson, Executive Assistant Commissioner (Office of Field Operations) (“3/3/00 Pearson memo”)).

The relevant regulations distinguish between the period of time in which an alien is considered to be in “status” and the period of time during which he or she is deemed to be in a “period of stay authorized by the Attorney General”.

8 C.F.R. 214.2©(4) provides that an extension of stay may be approved for an applicant who maintained his or her status before the application was filed. Similarly, 8 C.F.R. 248.1(b) provides that a change of nonimmigrant classification may be approved for an alien who maintained his or her status before the application was filed. In order to determine if an alien has maintained his or her status, the Service looks to see if the authorized period of admission has been overstayed. The relevant inquiry as to “status” requires the Service to determine if the alien was still within a period of authorized admission at the time of filing the application.

For purposes of section 212(a)(9)(B)(ii) of the Immigration and Nationality Act an alien is “unlawfully present” in the United States after the expiration of the period of stay authorized by the Attorney General. The period of stay authorized by the Attorney General normally expires upon the expiration of the alien’s Form I-94 (arrival/departure record).4

For the reasons stated in previous INS guidance and restated here, the Service will deem the alien to be within a period of stay authorized by the Attorney General (and not unlawfully present), if the alien has a filed a non-frivolous EOS or COS application with the Service Center and that application is still pending, provided that such application was timely filed, i.e., prior to the expiration of the Form I-94. See 3/3/00 Pearson memo.

In these circumstances, the alien benefits from a continuation of the period of stay authorized by the Attorney General, but not from a continuation of “status.” I.e., the alien was in a period of authorized stay when he or she was within the initial period of his or her admission and the period of authorized stay continues after the filing of a timely EOS or COS application. There is simply no analogous rule or guidance providing for a continuation of the alien’s “status.” Therefore, the alien will be in status only as long as he or she remains within the initial period of his or her admission. Of course, if the alien’s EOS or COS application is granted, the alien will again be in “status.”

In the above case scenario, the alien’s initial period of admission (as per her I-94 “Arrival/Departure Record”) expired prior to 9/10/01. She was no longer in status once her I-94 expired, but was considered to be in a period of stay authorized by the Attorney General because of her pending, timely filed COS application. The second application for an extension of stay of the alien’s B-2 nonimmigrant status was filed after the original B-2 status expired. Accordingly, it did not meet the requirements of 8 C.F.R. 214.1© as it was not timely filed. The alien became unlawfully present upon the denial of her original, timely filed COS application (12/07/01). The fact that the alien was also the beneficiary of an untimely filed EOS application (09/10/01) that was pending with the Service Center at the time it issued its denial of the COS application did not confer continuing “status” on the alien. As the alien was not within her initial period of admission when the B-2 EOS application was filed, she cannot invoke the policy outlined in the Pearson memo for purposes of avoiding unlawful presence.

Edited February 24, 2010 by JohnnyQuest