A LPR applying green card for husband

[Jenny M 0]

:no: Hello,

This is my mother's situation. She is a LPR and currently does not reside in the US. She has got her green card thru me for a few months. She married to my step-dad after my 18th birthday (many years ago), so she is planning to apply green card for him. They want to come to the US together for retirement (in other words, they don't plan to work in the US at all), and have already brought couples properties in the US. With that said, they will be financially capable to support themselves on their rental income and savings.

As you may notice the problem already, they want to come and stay in the US together and this is pretty much what I am trying to ask here. I am aware that she can apply for him as a LPR or USC in the future; however, I don't know how to help them with their plan.

So far, I think of 3 possibilities for them, and I'm asking around for different opinion. Any of your advice will be greatly appreciated.

1) My mother will submit I-130 as a LPR right now, and wait together oversea. During this waiting period, my mother will come to the US periodically to maintain her LPR status. As soon as his visa is approved, they will come to the US together.

Question: will her husband's application be affected if my mother does not stay in the US 100% of her time?

2) My mother will submit I-130 as a LPR right now and adjust his status as soon as she becomes a USC. Meanwhile, her husband will come to the US on a travel visa (he got a travel visa with 10-year validity already) and wait together in the US. To make his stay legal, can he just exit and re-enter the US every 6 mo?

Question: I heard that one will not be allowed to enter the US on a travel visa while a petition is pending, is it true?

3) He will come to the US on his travel visa, and my mother will submit I-130 as a LPR as soon as he gets to the US. Meanwhile, he will just overstay on his travel visa and wait here.

Question: will his application got denied if he overstays on his travel visa?

(L) Thank you very much in advance. (L)

Love your forum, it is GREAT

Edited February 27, 2012 by css

[kzielu 1,149]

1. Might be affected - it is all about joining families. No joining here... Additionally, travelling back and forth may not be enough to maintain residency.

2. He may not be allowed to enter and leaving for short period of time and immidiately coming back is not going to work. He'll be sent home.

3. Will get denied until the adjustment happens when his wife becomes US citizen. If he is unlucky, he may get deported in a meantime with a 3 or 10 year ban.

[ceadsearc 516]

If she is living overseas and just visiting the US she is abusing her green card and is likely to lose it at some point anyway.

Assuming she starts maintaining residency here and keeps her green card and files for her spouse:

A visa isn't immediately available. She needs to file the I-130 and wait for approval then wait for his visa to be available (a couple years). He can visit on a tourist visa in the meantime if he gets approved. He will need to show strong ties to his home country at POE to prove he isn't going to overstay. He'll be allowed a max of 6 months in a year but if it looks like he is really living here or staying here too much he may be denied at POE.

If he comes and overstays he will be denied because overstay isn't forgiven for spouse of LPRs.

[JimVaPhuong 4,863]

She is a LPR and currently does not reside in the US.

This statement alone is a killer. LPR's are required to reside in the United States. That's the whole point in being a Lawful Permanent Resident. If she's not currently residing in the United States then she's effectively already abandoned her resident status. If CBP finds out about this then they can seize her green card, schedule her for a hearing in front of an immigration judge, or even deny her entry to the US. In order to keep her green card she needs to maintain her residence in the US, and not simply touch US soil occasionally.

Question: will her husband's application be affected if my mother does not stay in the US 100% of her time?

HER status may be affected. Obviously, if she loses her status then his petition is dead.

Question: I heard that one will not be allowed to enter the US on a travel visa while a petition is pending, is it true?

That's up to the consular officer and the CBP officers. If they believe he'll try to become an immigrant while visiting the US then they won't issue a visa to him. If he gets a visa and tries to enter the US, and the CBP officer believes he'll try to become an immigrant while he's visiting, then they'll refuse to admit him. The odds of him getting a visa or being admitted to the US with the visa depends, in large part, on how often people from his country try to circumvent immigration laws and enter the US with a non-immigrant visa while having the preconceived intent to immigrate. To a lesser degree, it depends on his ability to convince a consular officer or CBP officer that he has ties to his home country which are strong enough to compel him to return before his authorized stay has expired. In other words, if he was from a first world country then the odds of them caring about his strong ties drops somewhat. On the other hand, if we was from Nigeria then he'd need overwhelming evidence that he has zero reason to stay in the US, and monumental compelling reasons to return to Nigeria. I suspect Hong Kong falls somewhere in between.

Question: will his application got denied if he overstays on his travel visa?

If he waits on the I-130, and his wife doesn't become a US citizen, he won't be able to adjust status even after his priority date is current. An immediate relative of a US citizen isn't required to be lawfully present in the US in order to be eligible to adjust status. Everyone else, including spouses of permanent residents, is required to be lawfully present.