AOS filing

[esun41]

Throughout my research and readings, I was under the impression that the reason to file copies of a marriage certificate and the I-94, admission into the USA document, was to satisfy the requirement that the fiancee married the petitioner in the 90 day time frame. These two documents would satisfy the timeline requirement, wouldn't it?

 

Now I have read some posts here that you have to file the I-485 in that time frame as well to satisfy the 90 day rule. Unless I missed it when reviewing the USCIS website instructions, no where does it clearly state the requirement to file the I-485 in this time frame. My understanding is that we marry 90 days from the time my fiancee arrives, which we will accomplish.

 

The following is from the USCIS website instructions:

 

"After you have been admitted to the United States as a Fiance(e) and have married your petitioner within the 90-day time limit, you are now eligible to adjust your status to permanent resident status"

 

 

The instructions on a different page goes on to say this:

 

 

Fiancee

 

"You were a fiancé who was admitted to the United States on a K-1 visa and then married the U.S. citizen who applied for the K-1 visa for you. (If you married the U.S. citizen but not within the 90-day time limit, your spouse also must now file USCIS Form I-130.

 

The key word in both these phrases is "MARRIED" No where does it say "file" or "adjust" or "pay fees" etc...

 

Could someone point me to the right direction here. I do not want to make an error based on my speculation. I have been fortunate to fully understand this whole Visa process thing and now, "we are not in Kansas anymore Toto" (Judy Garland, Wizard of Oz) I am being careful not to plagerize!

 

Thanks

 

Eric (esun41)

 

(I had a professor in college that always said " the only stupid question is the one not asked")

[LeeFisher3]

I know what you mean, it is a bit confusing. What you are describing is for 2 different categories of K-1 visa.

 

1. You arrived and married within 90 days - You have met the conditions of the K-1 visa.

2. You arrived and married but missed the 90 day commitment - You have met the conditions of the K-1 visa and should have left the country on day 90 when the visa expired.

 

In both cases at 90 days after entry into the US, your SO is "Out of Status" for the visa used to enter the US if nothing else is done. Both methods describe applying for CR1 but on 2 different paths. With the first you are simply continuing the process for the K-1 visa.

 

With the second the visa expired before the marriage and things get hazy since your SO would be "Out of Status" for a K-1 visa holder. Officially they would need to leave the country, but they overstayed a previous visa and the marriage certificate proves they were in the US on an expired visa. The instructions ask that you file the I-130 along with the I-485, this implies that since the K-1 visa has expired you are now filing for CR1 as a NEW case, since your SO is now out of status. Who knows where they take this.

 

As for the filing of AOS within a specific time frame, this is implied based on the visa used to enter the US. The K-1 visa expires at 90 days after entry leaving your SO in and "Out of Status" condition if you do nothing. The filing for AOS basically extends the visa indefinitely while the application is being processed, but being "out of status" work and travel are restricted unless you file and receive EAD and AP, or until your SO's status has been changed to CR1.

 

Now if you are unable to submit the required documentation because you are waiting on another government agency you are basically covered based on your filing for the required document(certified marriage certificate). If USCIS was to take issue with this the explanation of "awaiting processing for marriage certificate" would probably be enough since they require the document but do not have the authority to dictate to the issuing agency how quickly they will process this document. It's one of those Catch 22 situations.

 

An example would be that you married on day 89 after entry to the US and the state says they can not issue the Certified marriage certificate for 90 days. You have met the requirement of the visa, filed for the certified marriage license and are waiting on it to be processed. The I-485 requires a copy of this document to file for AOS. Unless USCIS has the ability to force the state to issue the certified document in the 1 day left on the visa they now get to wait on "Administrative Processing" while the state does their thing. When it arrives you file AOS.

 

The easy answer is to get married within the 90 days, do what you can and not worry about it too much.

 

Now for the really important item, I have printed your correspondence and will soon be filling a class action suit for discrimination as I AM from Kansas and we have been totoed to death.

[frank1538]

On the question of filing the I-485 within the 90 validity period of the K-1, Lee points out some of issues that might arise if you get married within the 90 days, but can't get the AOS paperwork in by then.

 

In other posts, I had said that the individual is technically out of status between the time the K-1 expired and the time the AOS is filed, but again, I have never heard of any downside to not filing the AOS within the 90 days.

 

I went back and looked at the instructions to the I-485, and it seems the instructions may actually contemplate this possibility.

 

First, the instructions say that a K-1 fiance(e) is eligible to file if he/she married the US citizen who filed the petition within 90 days. Then the instructions go on and describe those who are not eligible. Among those not eligible are individuals who failed to maintain their non immigrant status (out of status). While this would technically include fiance(e)s who married within 90 days but who are still in the US on an expired visa, the instructions specifically carve out an exception for such people. By doing so, I think the instructions recognize that some K-1ers won't be filing for AOS until after expiration of the 90 days.

 

If possible, avoid the issue by filing for AOS within the 90 days. If you can't, I don't see a significant problem, but I wouldn't dally too long before I filed.

[esun41]

Thank you to Frank and Lee for such detailed responses. I have no intention of this going that far but need to be fully aware of all consequences involved. Stuff happens and I want to be ahead of the game in all circumstances.

 

Thanks again...

 

Eric

[HanLi]

Lee and Frank were all over this one.... follow their advice, and don't dally!!!!