If the I-94 for My K-1 Visa Has Expired, Can I Still Adjust Status?

If you are a foreign national who came to the United States on a K-1 fiancé visa, then you married the U.S. citizen who petitioned you, but took a long time to get your paperwork together for the adjustment of status application (for a green card) and haven't yet filed it, your I-94 might have expired. That's the document that tells you how long you're able to lawfully stay in the United States. Now what do you do?

Don't panic, but definitely act quickly, using the tips in this article.

What's Your Immigration Status in the U.S. as a Fiancé With an Expired I-94?

After the departure date on your I-94 passes, your status in the U.S. is unlawful, meaning that if you were, for some reason, encountered by U.S. immigration authorities, you would be placed into removal (deportation) proceedings. But that is not the most likely scenario.

More likely, you will still be able to submit your adjustment of status packet (which is always done by mail, not in person). Assuming the application is based on your marriage to the same person who petitioned for you to receive the K-1 visa, U.S. Citizenship and Immigration Services (USCIS) will accept it for processing.

How to Account for an Expired I-94 When Applying to Adjust Status?

The key thing to understand at this point is that your proof of having been approved for a K-1 visa can no longer serve as the basis of your application. In its place, your U.S. spouse will now have to fill out an additional form for you, called a visa petition, on Form I-130. What's more, you will have to pay the fee associated with Form I-130 (which you can find on the relevant page on the USCIS website.)

Once your adjustment of status application is successfully submitted, your status in the United States becomes legal. You should get a receipt notice from USCIS after it accepts your application for processing, normally within several weeks. You can use that receipt notice (Form I-797C) as temporary proof of your right to be in the United States.

What If You're Arrested Before Submitting Your Adjustment of Status Packet to USCIS?

If it does happen that you are picked up by Immigration and Customs Enforcement (ICE), this isn't the end of the world either. You will (unless you fall into a rare exception, such as having a previous deportation on your record), be given a "Notice to Appear" ("NTA") and a date to go to immigration court, for removal proceedings. There, you can present your application for a marriage-based green card to the immigration judge.

The downside of having your case end up in court is that you will probably have to spend thousands of dollars in attorney's fees. Plus, the judge will be legally bound to give much stricter scrutiny to the bona fides of your marriage than USCIS would have.

Nevertheless, if you can explain what went wrong, and convince the immigration judge that you and your spouse truly intend to establish a life together in the U.S. (and aren't just committing a fraud to get you a green card), the judge should approve you for the green card at the end of your merits hearing.