rugea

I was quite happy to be directed to this site because I have a unique situation and need a few questions answered. My wife came over in 2005 on a K1 and we were married within the 90 day time frame. For personal reasons, we were not able to file for her AOS right away. On the plus side, we never needed her income so filing for an EAD was not important and both her parents are deceased so she wasn't interested in leaving for a visit. We are able to file now and I have a question about filing for AP at this time.

Since she is technically 'out of status' at the moment, should I even submit the paperwork for AP? We were thinking of visiting her relatives in June 2008, is that going to be possible with only the AP if we haven't rec'd her GC by then? Or since she's been 'out of status' for so long, would it trigger the 10yr ban upon leaving the US even is her AOS is pending?

Thanks for any help!

Rete

Your wife has been out of status on the 1st day of the expiration of her K-1 until the day she files for AOS. Since you said she arrived in 2005 and it near the end of 2007, she has been in over nearly 2 years. She should NOT under any circumstances use advance parole. She should not even contemplate applying for it. And if she did and the USCIS approved it, she still should not use it. The onus is on her to know the regulations regarding overstays, penalties and use of advance parole.

It might well trigger a permanent ban.

rugea

Thank you, Rete. That's what we were both thinking. I just wanted to confirm it with a more reliable source because I was unsuccessful in locating that specific information anywhere on the USCIS website.

We didn't even fill out the I-131 and won't know as you've sugggested. Thank you again.

Folinskyinla

Hi:

Excellent question! As a legal matter, MY argument is that she is NOT "out of status," so "no problem." This is based upon the language of a BIA case from 1979 and the way Congress amended the law in 1979. However, as a PRACTICAL matter, the DHS has a firmly ensconsed misinterpretation of the law and they might allege there is a 10-year bar.

If she uses the advance parole, have a lawyer in mind beforehand.

To summarize -- as a matter of law, no problem.
As a matter of practice, big problem.

Good luck.

Rete

It is definitely how I would handle it if this were my husband. While she is within status being that she married before the 90 day expiration of the K-1, the K-1 is expired and I would not have allowed him to leave the US until he had a green card.

May I make one more suggestion? Why not have a one-time consultation with a well-versed immigration attorney for a small fee or if that is a hinderance, why not find an immigration clinic for a consultation, i.e. Catholic Charities or a large city's immigration services. Since she is nearly two years past the expiration of the K-1, you want to be sure that an I-130 is not needed. I know that there is an attorney who once posted that he was able to have his client file without the I-130 even though their K-1 was long time expired but you might not want to take that chance if you are doing it on your own.

Folinskyinla

Hi:

I don't think an I-130 is "needed" -- however, in this particular circumstance, it might be a good way to avoid imposition of the two year condition. Even if the I-130 is filed, it should be made abundantly clear that the K-1 petitioner and the I-130 petitioner are one and the same.

rugea

Good point as I thought an I-130 wouldn't be needed at all. I had also (I hope not erroneously) assumed that since we have been married for over 2 years, we wouldn't be subject to the 2 yr conditional GC. Would be nice to go straight in for the 10 yr and then file for her naturalization in another years time.

Will let you know of our progress. Thank you again for your thoughts on this matter.

Ray

She would need to hold the GC for 3 years before appling for citizenship ...
the marriage date does not effect this

Folinskyinla

Hi:

Actually an argument can be made that the three years started ticking with the date of the marriage. Not that CIS would accept it, but I do believe it is a strong argument.