Filing for AOS

[Figmo]

DO I HAVE TO file the AOS right away? From everything I've read - there is no wording that states a timeout for the K1 visa. Only that you must marry within 90 days (which we have done).

 

For personal reasons, I'd like to wait. Possibly a long time. 1, 2 or even 3 years.

 

Drawbacks to waiting that I have been able to guess would be that my wife can't leave the USA (since she wont be able to get back in), and possibly work issues (she is a housewife so we are not concerned about this).

 

Are there other problems I am not aware of to waiting a year or 2 before filing the AOS?

[dnoblett]

All the time your wife will be out of legal status, I have read of a few that hold off on AOS for a few months to a year or so and have no problems, but this is a big risk.

 

Keep in mind AP and EAD are interim benefits of AOS, so cannot legally work, and in most states, cannot even drive a car (License requires SSN and proof of legal resident status (EAD, or Green-Card).

 

Filing for Adjustment of Status within the 90 days protects your legal status. Your legal status as a K1 expires after 90 days, married or not. The only way to protect your legal status is to apply for Adjustment of Status, and the only way to maintain continuous legal status is to file for AOS before the K1 visa expires. On the practical side, it is often difficult to arrange for the marriage, and get all the paperwork ready in time to file for AOS within 90 days. Many newsgroup couples have filed for AOS a few days or weeks after the 90 day limit with no problems. Thus far, newsgroup experience has shown this is not a major issue with local USCIS (INS) offices.

http://www.visajourney.com/faq/k1k2visa-aos.html#6.1 Edited December 12, 2007 by dnoblett (see edit history)

[Jeikun]

K-1 Visa is only good for 90 days after entering the US. You need to marry AND apply for AOS during this period.

 

If you go over this a bit, there will likely be no trouble (as long as you married within the 90 day timeframe) but years? hell no.

 

If you want to wait several years to even file "for personal reasons" you might be better off not marrying her at all. She will be "out of status" and your AOS might not be approved at that point. Basically she would become an illegal.

 

So let's see...

 

- can't return to China without having to stay

 

- will have a visa overstay on her record and may be barred from returning to the US for years if she decided to come back

 

- can't work

 

- can't drive

 

- can't have a bank account, or use any services (without the chance of coming to someone's attention and getting a deportation letter).

 

Yeah I'd say that's a pretty bad idea.

[Figmo]

K-1 Visa is only good for 90 days after entering the US. You need to marry AND apply for AOS during this period.

 

You see, this is the wording that I have not been able to find (other than anecdotal). The part in the immigration code that says "AND". Everything I've read about the K1 says "Marry within 90 days". Then, at some later paragraph very far away from these words, they mention filing for the AOS.

 

Even the instructions for the I-485 seem to back me up. They say

Who Is Not Eligible to Adjust Status.

...

you are not eligible for adjustment of status if any of the following apply to you:

...

F. You failed to maintain your nonimmigrant status,other than through no fault of your own or for technical reasons; unless you are applying because you are:

...

2. A K-1 fianc¨¦(e) or a K-2 fianc¨¦(e) dependent who married the United States petitioner within 90 daysof admission;

As far as I can see, there is no requirement for filing the AOS within that 90 day period. 90 days or 900 days from now, she would legally fall within the definition above.

 

If this is true, than she would not be "illegal". She entered legally. Fulfilled her visa requirement to marry within 90 days (we have already done this). And she is waiting to file the AOS. Nothing illegal.

 

She already has a SS#. Doesn't want to drive a car (but I'm sure she could get a DL if she wanted to). Pretty sure she could open a bank account (though here again, no real desire or need to)

 

Can somebody point me to some legal description on the web that clearly states the time limit for filing the AOS (if there is one)?

 

I've done everything without an attorney up to this point. I think perhaps now it might be worth paying for some acurate advice.

[Randy W]

My impression is that, one year after the visa expiration, she would have accrued enough "illegal presence" to where it might damage her ability to get another visa, should she leave the country. She could be removed. although I believe she would be beneath their radar.

 

Once the visa expires, you are relying on the good will of an IO (immigrations officer) to adjust status. This is normally no problem, provided you make a reasonable effort to do so.

 

The USCIS is not bound by any law here. If she is turned down for the green card, you can always argue your case (and likely win) in immigration court.

 

The best advice you can get is to mail in the application. Anything beyond 6 months is stretching it, anything beyond a year is completely unreasonable.

[Cerberus]

Figmo,

 

I don't know if it has any relevance, but I delayed my wife's AOS application until approximately 1.3 years after her arrival here. Please understand that she was a K3 visa.

 

On a particular Info Pass appointment, I asked this same question. The USCIS officer's response was that as long as her or K1's visa hadn't expired she/he could file for AOS, as long as the application was in the system prior to visa expiration. Once she was in the system, it ran the course of applications, appeals (if denied), etc.

 

I personally wouldn't wait until the last minute. The only reason that I delayed was to finish school, get employment so that I could be 125% above poverty line and not use a co-sponsor.

 

I looked at your location, but I didn't see a location for your office. Here is another topic I posted, that you might find helpful

 

 

http://candleforlove.com/forums/index.php?...c=21647&hl=

 

I would check all options prior to taking this at face value. Why not get an Info pass appointment and ask your respective AOS office?

[david_dawei]

Let's not forget that SHE is the one who files...

 

so you have to deal with the issue of whether your preventing her or keeping this fact from her?

 

She pays the price for not filing HER AOS.. let her decide.

 

I personally would not wait more than a year...

[MikeandRong]

2. A K-1 fianc¨¦(e) or a K-2 fianc¨¦(e) dependent who married the United States petitioner within 90 daysof admission

 

 

Interesting play on words or.

 

 

 

Wonder if it has happened?

[Randy W]

2. A K-1 fianc¨¦(e) or a K-2 fianc¨¦(e) dependent who married the United States petitioner within 90 daysof admission

 

 

Interesting play on words or.

 

 

 

Wonder if it has happened?

 

 

Huh??

 

 

A K-2 fiance(e) dependent is the child of the K-1 fiance.

 

 

 

Has a USC ever dumped his fiance in favor of the K-2 child??