Overstay while waiting AOS?

[Dean Hall]

I can not seem to get any definitive answer on my question.

 

Here is the situation.

 

We got a late start on the AOS due to circumstances beyond our control.

(Had to return to China this summer to get some more paperwork)

 

Now, everything is turned in, and mother and son are scheduled for fingerprints on Dec 14.

 

Looking at some time lines, we could go as much as 3 months past the stamped exit date on the I-94 before the interview.

 

Since we are now in the AOS process, does it even matter?

 

One option seems to be to extend the I-94 by using the I-539.

 

Any help or comments are appreciated.

 

Thanking you in advance,

 

Dean

[frank1538]

Dean, I think as long as the I-485 was filed before the I-94's duration lapsed, they continue to be here legally under a "period of stay authorized by the Attorney General." I don't have the link at hand, but if I find it, I'll edit this and post it. I don't think anything else needs to be done.

 

Found the link: http://www.americanlaw.com/unlawfulmemo1.html

 

"Aliens with properly filed applications for adjustment of status under both sections 245(a) and 245(i) of the Act will be considered aliens present in the United States under a period of stay authorized by the Attorney General."

Edited November 29, 2005 by frank1538 (see edit history)

[Dean Hall]

Thanks, guys ! I feel much better.

 

The crux of the matter seems to be more about leaving, then, than staying.

 

If wife and or son should have to leave after March, of this year, they could then be seen as abandoning the AOS.

 

Also, they would have no legal entry back into the US.

 

I could file for AP, or since we are K3/K4, use the I-539 to extend the K3.

It makes more sense for me, as the extension of the K3 in essence is a multiple entry visa.

 

Here is some more info I found:

 

14.5)...Will I need to apply for Advance Parole in order to leave and then reenter the United States?

A..Not as a K3/K4. You will need Advance Parole to reenter the United States at any time after your status as K3/K4 has ended, but before obtaining Permanent Residency.

back

14.6)...Does the K3 status change after applying for Adjustment of Status?

A...The K3/K4 status does not change *because* an AOS application has been filed. The K3/K4 status expires on its own, generally after two years. However, after the K3/K4 status has expired, but prior to gaining approval for permanent residency, the status will be a "period of stay authorized by the Attorney General", based on being an Adjustment Applicant who is awaiting a decision regarding an adjustment of status application.

back

14.7)...What if my EAD expires before my application for Adjustment of Status is approved?

A..Apply for a new EAD. Make sure you apply well in advance, since processing may take several months.

If you have never applied for Adjustment of Status, then you will be required to show that your initial I-130 petition is still awaiting approval, or, if the I-130 was approved, that you have applied for an immigrant visa at a U.S. Consulate.

back

 

14.8)...My status as K3 is about to expire, and I am still waiting approval of AOS. Is there anything I can do to keep my status?

A..Yes, you can apply for an extension of status with the USCIS (INS). This will enable you to leave the United States and return without needing Advance Parole. It is probably a good idea to extend the K3/K4 status if you plan on being outside the country.

 

As with renewal of EADs, your application for extension of status as K3/K4 will not be approved if you have never applied for Adjustment of Status, unless you show that your initial I-130 petition is still awaiting approval, or, if the I-130 was approved, that you have applied for an immigrant visa at a U.S. Consulate.

back

 

 

14.9)...What is the status of a K3 after approval of Adjustment of Status?

A..If Adjustment of Status is approved after the marriage is two years old, then the K3 (and K4) will become Permanent Residents. If the marriage is less than two years old when AOS approval is obtained, the K3/K4 will be Conditional Permanent Residents. For more information on Conditional Permanent Residence, and the subsequent application for Lifting of Conditions on Conditional Status, see Section 7.0.

back

[david_dawei]

14.8)...My status as K3 is about to expire, and I am still waiting approval of AOS. Is there anything I can do to keep my status?

A..Yes, you can apply for an extension of status with the USCIS (INS). This will enable you to leave the United States and return without needing Advance Parole. It is probably a good idea to extend the K3/K4 status if you plan on being outside the country.

 

As with renewal of EADs, your application for extension of status as K3/K4 will not be approved if you have never applied for Adjustment of Status, unless you show that your initial I-130 petition is still awaiting approval, or, if the I-130 was approved, that you have applied for an immigrant visa at a U.S. Consulate.

172589[/snapback]

?? Extending a K3 to ensure travel without AP ??

 

Anyone have anything on how to do this, or any comments ?