Can my parents overstay until I get my citizenship?

[piglet0128 0]

Thanks for all the helpful and useful information you have all posted here!

My parents entered US with B-1 Visa and it will expire at the end of this month. I just passed my naturalization test and will get the citizenship certificate in two month. They want to apply for the family based GC when I become a citizen but the problem is their visa will be expired by then. My question is if they overstay their status, will it impact the approval of I-485? and is there any other forms we should file? and additional fees?

Thanks a lot

[vbtwo 54]

First of all, will the visa expire this month or the I-94? If it's the visa itself, look online for the I-94. It doesn't matter when the visa expires, as it's only used for entry. They can stay in the US legally until the I-94 expires.

If the I-94 expires, legally they must leave and then you file an I-130 petition and after it's processed (a few months) they go to the consulate and get an immigrant visa and they should just get a GC when they come in without having to do AOS.

I don't know if overstay is forgiven for parents if they overstay and do AOS or if it might cause a denial of the petition. If you try the AOS way, you would also file an I-130 petition for alien relative together with AOS, as the petition would be the basis for the AOS (it results in an immigrant visa number upon approval)

EDIT:

Look at AOS form instruction under "Who is not eligible to adjust status" number 4. They are not eligible for AOS if they overstayed their I-94.

Edited November 13, 2013 by vbtwo

[Pitaya 2,577]

~Moved from Family-based AOS to WST-based AOS Forum~

~Inquiry about AOS from B-1 visa~

[Dakine10 5,452]

Parents do qualify as immediate relatives therefore overstay will not negatively affect adjustment of status. AOS for parents is relatively straight forward, but like anything else it's not guaranteed. Just bear in mind if the AOS is not approved for any reason, they will likely have difficulty entering with a visitors visa for some time.

You can generally use the guide for adjustment of status while in the US that's listed in the guides section of VJ. Since that guide is written with spouses in mind, also review the guide for bringing parents to the US for the supporting documents that need to be sent.

[belinda63 3,047]

And remember that between the time their stay expires and you file and have a receipt for it, they will be subject to detention and deportation. They will have no legal status during the "between" time.

[piglet0128 0]

Thanks to all the posts above.

I did call the USCIS, the lady on the line told me they can still file AOS if they overstay but she does not have further information regarding approval of the application. I understand it is case by case and there is always a chance. And i also understand they will be out of status if they overstay, however it just seems a lot of trouble for them to go back and try to get the immigrant visa. I will talk to them and let them make the decision.

If anyone has more information please share with us. many many thanks.

[Daveykins 17]

It might be just me, but I wouldn't risk overstaying the visa and then trying to file AOS for them. The risks far outweigh the rewards in the end.

[Hypnos 6,578]

Overstay is not penalised at adjudication for an immediate relative of a US citizen. Immediate relative = spouse of, parent of (if the child is at least 21), minor child of (if the child is under 21), widow/er of (if filing within two years of the spouse's death) a US citizen.

Should they overstay? The risk is probably minimal, but it's for you and your parents to decide whether it's worth it. I personally would not, since your parents probably have a lot of loose ends to tie up in their home country, but there you go.

[Dakine10 5,452]

Thanks to all the posts above.

I did call the USCIS, the lady on the line told me they can still file AOS if they overstay but she does not have further information regarding approval of the application. I understand it is case by case and there is always a chance. And i also understand they will be out of status if they overstay, however it just seems a lot of trouble for them to go back and try to get the immigrant visa. I will talk to them and let them make the decision.

If anyone has more information please share with us. many many thanks.

My father in law got his GC through he AOS route. He had been here 5 1/2 months so wasn't an overstay. It's actually simpler than a spousal AOS since there is no relationship to scrutinize. No copies of bills and apartment leases and so forth. Just proof of relationship.

We had to have the person who was watching his residence send over his birth certificate and marriage certificate since he did not have those documents with him. We had a RFE since I forgot to fill in the section that asks about his memberships in various organizations. The green card was approved about 3 weeks after we responded to the RFE. There was no interview. It took just under 10 months from start to finish.