K1 status has expired, waiting for AOS I-797...can she travel?

[sbdray]

Hi,

My wife and I got married last month, and her K1 status expired yesterday (her I-94 says "Class K1 until Nov. 18, 2008"). We just sent in her I-485 AOS application last week, so we haven't received the I-797 receipt from the USCIS yet. I know, we should've sent in the I-485 sooner...my bad.

Anyway, we're flying to Boston next week for Thanksgiving, and the only form of ID my wife has is her foreign passport. Will she be ok at the airport with that? I'm afraid they'll flip to the visa page and see that her K1 status has expired and not let her on the plane. I have our marriage certificate which shows that we got married within 90 days of her arrival into the US. Will that be sufficient?

Thanks

[nichole]

She will show her passport to airline employees as photo id, not to immigration on a domestic flight. It should be fine, but taking the marriage certificate is a good idea just to cover your bases.

The K1 visa expiration was the 6 months she had from issue to using it to enter the US. Once she enters the US, the K1 visa is basically "expired" since she can't use it again. She should also have an I-94 with a date showing 90 dates from entry into the US. That date is more the issue. The marriage and AOS filing are intended to happen before that I-94 expires, not the K1 date.

[sbdray]

She will show her passport to airline employees as photo id, not to immigration on a domestic flight. It should be fine, but taking the marriage certificate is a good idea just to cover your bases.

The K1 visa expiration was the 6 months she had from issue to using it to enter the US. Once she enters the US, the K1 visa is basically "expired" since she can't use it again. She should also have an I-94 with a date showing 90 dates from entry into the US. That date is more the issue. The marriage and AOS filing are intended to happen before that I-94 expires, not the K1 date.

Yup, others have told me that the airport workers that check ID are TSA, not Immigration, so all they look for is that the name on the ID matches the name on the boarding pass.

We filed the AOS 1 week before her I-94 expired, but I don't think there's a deadline to file the AOS. One guy in a different forum told me that his wife waited 3 years after getting married on the K1 visa before she filed for her AOS. The main thing is to get married within 90 days of the fiancee entering the US. I read somewhere that a K1 beneficiary would just be out-of-status until s/he files the AOS after the I-94 expires.

[panterchen]

She is ok

She will be ok as long you stay inside the US.
Travelling outside of the US would require a Green Card or filing for an Advanced Parole if you need to have it sooner (doesn't always work though).

[Mayumi]

Need clarification

Do we need to file for AOS before the 90 days is over or not? The instructions for I-485 and I-129 just says that our marriage should take place within 90 days of his entry.

However, I've read from this forum that both wedding and AOS need to happen within 90 days. So my other question is, in which form can I find this statement?

Thank you for your help.

[nichole]

I don't think you're going to find the statement on any form. From many people's experience, K1s file for AOS after the 90 days and the green card processes like one filed sooner. But it is my understanding that the I-94 is the K1s allowed legal time in the US on that visa entry. If they file for AOS then they are allowed to remain while that application is pending. A receipt from the USCIS for AOS is proof to carry around to show that although their I-94 indicates they are out of status, they have a pending AOS.

Then there's the stories covered on TV (I think 60 minutes) of the young families with the Mom an immigrant who had married, had children and was enjoying American life with new friends and in-laws for several years. Then the husband died tragically. The immigrant had never gotten around to filing AOS. The USCIS ruled that they could not file based on being married to an American because as widows, they were no longer married to a USC. They were then classified as out of status and to be deported. Had they just filed and gotten their 2 year green card, they could have gotten the 10 (permanent) GC as widows. The various cases had attorneys fighting the issues for a couple of years. I think the latest is that something has recently been ruled in their favor, but I don't think their legal wrangling is over. That's why filing for AOS before the I-94 expires is always the safest thing to do to assure the immigrant gets the green card as soon as possible. ICE won't come looking for you the day it expires, but sometimes things can go terribly wrong that you didn't expect. Also try to explain to a state Highway Patrolman that even though you have no documents to show your legal status in the US, it's okay to be here with an I-94 expired for a year.