"In Legal Status" sounds good, but what does it really mean?

[adamgnelson]

On this page of the immihelp website there's a quote that's not clear to me, and I'm hoping that someone here can explain it:

Between the time the adjustment of status application is filed and it is approved, the applicant is considered to be in legal status as an "applicant to adjust status."

To me this sounds like it's okay for a B2 visitor (like my foreigner wife) to remain in the USA after her I-94 expires, as long as she files *before* it expires.

Is this what this quotation means?

Can my wife legally remain in the USA after her I-94 has expired if she has already applied for adjustment of status?

[daru786]

What my understanding is that you have to be legally present in US while AOS is processing to be considered legal. If you are not in lawful status, but applied for AOS, AOS is not considered to be a legal status and the person can be deported.

[adamgnelson]

My understanding is that you have to be legally present in US while AOS is processing to be considered legal. If you are not in lawful status, but applied for AOS, AOS is not considered to be a legal status and the person can be deported.

Thanks for explaining your understanding. I have been looking for something online at the USCIS website that clarifies this issue, but so far I have not found it.

Here's a similar situation that brings up a good point. Let's take (for example) a K-1 visa which allows the foreigner up to 3 months to get married to her/his sponsor after arriving in the USA. If they get married within the 3 months the foreigner does not have to leave the country -- and is not subject to deportation -- even though she/he no longer has a valid visa. In this case the foreigner is not only allowed but expected (and probably required) to remain in the USA while waiting for her/his Green Card.

The reason I bring up this K-1 situation is because it doesn't seem much different from a foreigner wife who is here on a B-2 visitor visa when she applies for AOS and then her I-94 expires. In both cases the foreigners came here legally and applied for AOS properly in the USA while all their documents were valid. Yet some time after they applied, and while they were waiting for their AOS approvals, their I-94's / visas ran out.

In this situation they are not supposed to leave the country because they are supposed to be here to receive the results of their AOS applications. Yet if they have over-stayed their I-94 / visa expiration dates then they should have already exited the USA?

This certainly seems like a Catch 22 situation to me.

From what I have read (and who knows how accurate it is) the foreigner spouses in this situation are generally allowed to remain in the USA without current I-94's / visas specifically because they are applying for -- and expected to get -- permanent residence based on their spousal relationships with American Citizens.

But they cannot obtain this permanent residence status unless they stay here in the USA to comply with the AOS application / interview / biometric requirements, and obviously this means over-staying an expiring I-94 / visa sometimes!

Therefore ...

From my point of view it *seems* to be acceptable (and expected) for the foreigner spouse of an American citizen to remain in the USA while waiting for her/his AOS even though the foreigner's documents have expired (or will expire) during the waiting period.

I only wish I could find on the USCIS website a clear statement of fact that would confirm this belief. In the absence of such a statement we are left with theories and conjecture -- and lot of needless worry and concern if in fact they are not going to deport the foreigner spouse as long as her/his AOS application is eventually approved.

-------------------------------------

If you have any online references that might further clarify this situation I am certainly very interested in seeing them. Perhaps posting the links in this thread might help me -- and others like me -- to learn more about this important issue.

Thank you!

[daru786]

I read somewhere a case somewhat same as yours. They called the USCIS office and were told that if the AOS is filed they shouldn't worry about over staying. Here's what I would do, call the USCIS office and ask them. I will also PM you a site run by an attorney, he is really good and will give you an answer at no charge.

[adamgnelson]

Thank you daru786, I will give the USCIS a call and see what they say. I look forward to receiving your PM with the attorney's contact information, too.

[lionofafrica]

Legal status/Adamgnelson

Adamgnelson, you do not need to worry yourself with the legal jargons as most of USCIS adjudicators, are not lawyers and they may not be able to help you, if you ask 10 of them( this question) it is likely you will get 10 different answers.
Note if your wife was here on B2 visa and applied for AOS, before the expiration of your I-94, then ,when she travels while her application is pending, the 3 years and 10 years bar rule will not apply to her( SHE WOULD HAVE OVERCOME THE BURDEN OF ILLEGAL STAY AND IT'S PENALTY). However if your wife applied for adjustment of status after the expiration of her I-94 and unfortunately had to travel outside the country before the determination of her AOS, she may trigger the 3 years and 10 years bar( that is depending on how long she had overstayed her I-94, she may be bar from entrying the US for 3 years or as long as 10 years.
Now going to your question, as long as your wife files her AOS within the duration of her I-94, she will not have accrue any illegal stay and as soon as she applies and get a receipt or notification from USCIS, she is not regarded to be here illegally untill her case is adjudicated. It is important for a B2 visa holder to wait atleast 3months before filling in other to overcome the sucpiciousness of intent to emigrate abinitio that may come up during the interview. It is not a rule of the thumb, but adjudicators are smarter and better and kinder than each other.

Goodluck.

Lionofafrica( this is my 2ce, 10 years dealing with immigration)