khabibiuf

Hi All,

My wife's K3 will be expiring in a couple of months. She has already applied for AOS but AOS process will be done after her visa has already expired. We need some advice with regard to what actions must be taken by us to maintain her legality here. Here's what we've read/heard so far:

1. We don't need to do anything because she has applied for AOS.
- Even though I've heard this from various sources I haven't seen this documented anywhere? This sounds very risky as well her passport will show that the visa is expired...

2. Form I-539 can be used to extend K3 status. The INS website says the following....


" K-3/4 Nonimmigrants: Use this form to obtain an extension of K-3/4 status while your permanent residence case is being processed. You may also submit a Form I-765, Application for Employment Authorization, at the same time as this form to request renewal of your employment authorization. You may travel outside of the U.S. and be readmitted as a K-3/4, if you have a valid passport and K-3/4 visa. "

So it appears from the above statement that form i-539 should be used to extend her status EVEN WHILE HER PERMANENT RESIDENCE CASE IS BEING PROCESSED!...



Any feedback or advice for us? We are really confused.

Thanks,

- Khabibiuf

khabibiuf

Does anybody have a response to my original thread?

Folinskyinla

Hi:

Either one is just fine. Word of warning -- if you do option #2 and she travels without advance parole, she will be able to return, but the AOS will have been abandoned unless she gets and uses the advance parole. I don't know why you would want to do that, but it is your choice, not mine.

khabibiuf

If she sticks with option 1) then what will be her classification after the visa expires? How can she prove her legality if needed?
All we got from INS is a cash register receipt at the time of filing AOS.

- khabibiuf

timesup

This seems to be in conflict with what I've read. Is there a government site where I could see in print that this is indeed true for K3 visa holders?

The U.S. Department of State website clearly states that a K3 visa holder with AOS pending is not considered to have abandoned their AOS petition if they leave the U.S. So I do not see why a K3 holder would need to get AP.

I'm curious if there was some change in the rules or something because my hubby will (I hope) soon be a K3 holder and we may file AOS and I don't want to mess anything up if he travels out of country with AOS pending.

From the U.S. Department of State site:
http://travel.state.gov/state167548.html
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Use of the K3/K4 NIV to Travel Outside the United States

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38. According to the BCIS rule, "aliens present in the United States in a K3/K4 nonimmigrant classification may travel outside of the United States and return using their nonimmigrant K3/K4 visa, even if they have filed for adjustment of status in the U.S. prior to departure "The Service will not presume that departure constitutes abandonment of an adjustment application that has been filed."

39. Note that this is quite different from those holding K1/K2 status who are required to obtain advance parole from BCIS to avoid abandonment of their adjustment application with BCIS, if they leave the United States.



---------------
Annie

Folinskyinla

Hi:

I have this habit of looking at the actual statute and regulations, which I have just done. And I will give a mea culpa

8 CFR 245.2(a)(4)(ii)(C) has been amended to say at the end of the subsection:

"The travel outside of the Untied States by an applicant for adjustment of status, who is not under exclusion, deportation, or removal proceedings and who is in lawful K-3 or K-4 status shall not be deemed an abandonment of the application if, upon returning to this country, the alien is in possession of a valid K-3 or K-4 visa and remains eligible for K-3 or K-4 status."

Note the particular reference to a "visa" -- an extension of K-3 or K-4 status in the US will not be sufficient. There has to be a visa, which by definition is issued by a CONSULATE. This rule MAY be a little different for travel to Canada or Mexico.

Folinskyinla

Hi:

You get into a gray area -- notionally speaking she would not be here with valid non-immingrant status nor with valid permanent status.

However, she WILL be here under "color of law" in that she has an application for adjustment of status pending. That is not considered by anyone to be "unlawful" status unless the application is ultimately denied.

IOW, don't worry aobut it.

nat

Hi

If one needs only to do option (1),ie, applying for AOS and AP (and not applying to extend K3/K4 status if approaching the two year end)....,what happens if one cannot apply for AOS on K3 visa (as I have read that one cannot apply for AOS on K3 visa until the I130 has been approved). [I have also read conflicting information as to the AOS on K3 visa on I130 approved/unapproved]. Does this mean therefore that one must go on to option (2) because there is no AOS and AP? This is on the basis by the way that the I130 is at least two years from being decided on that I pose my questions.

Therefore in option (2) one can apply to extend K3/k4 status. If this in fact is not referring to the K3/4 visa, what does one do to extend that visa? As surely one cannot now leave and return to the US without either AOS pending or valid visa?

khabibiuf

You can use form I-539 to extend the K3/K4 visa while AOS is pending. There is a special note on the form for K3/K4 visa holders.

- Khabibiuf

Folinskyinla

Hi:

The I-539 is filed with and adjudicated by BCIS which is part of DHS. BCIS has nothing to do with the extension of a K-3 "visa". The I-539 will extend the K-3 status in the United States. That is NOT the same as the "visa."

khabibiuf

Yes... "status" is correct. I-539 extends the K3 status.

- Khabibiuf

khabibiuf

Just curious. What does extending "status" exactly mean? Will they issue any type of document showing this? Or will the visa and/or I-94 will be changed to reflect this?

- Khabibiuf

Folinskyinla

Hi:

The term "visa" is a defined term which is often misused -- even by the courts, the BCIS, and even immigration lawyers!

However, my instructor in immigration law many years was quite specific about it -- all the "visa" is a document issued by the DEPARTMENT of STATE that allows a carrier to bring you to the United States where you can APPLY for admission. Once you are admitted to the United States the "visa" has no legal significance.

When you are IN the U.S., you have a "status" which is intially granted by the BCPB dick at the border, and as later modified or extended by BCIS.

This "status" is NOT a visa and is lost upon departure from the United States.

The "parole" is a legal fiction where an alien is considered to be remaining at the port of entry although the body is allowed in.

I've mentioned this before, once you have an application for AOS pending, maintaining "lawful status" in the US becomes, as a practical matter, a non-issue. You are here under "color of law".

This is not really something to worry about.

nat

And if one cannot apply for AOS until the I130 is approved (and the K3/K4 visas expire) what does one do? Use I539 to extend status and then refer back to the consulate to extend the visa?

khabibiuf

In my wife's case we applied for AOS even before the I-130 was approved. I'm not sure if this would work for every case though... The officer at our local immigration office took the AOS application anyway and gave us a receipt. After the I-130 was approved I took the approval letter back to the INS office and gave them a copy.


- Khabibiuf