Need advice on complex issues - Extension vs Adjustment of status

[kdn103 1]

Hello there,

I am posting on here today in hopes of getting some of my questions below answered so i can proceed with filing appropriate forms.

Mother-in-law who is widow and doesn't have anyone to take care of her in India so she is currently residing with us in San Jose. For the past 3 years, she has been coming to stay with us for 6 months and going back to india for 6months. She has been in compliance with all immigration laws. This is the third time she came to US. For the current trip, she entered US on July 8th 2016 and is authorized to stay until January 7th 2017. My wife and I just had a baby on Nov 7th and we desperately need assistance taking care of the new born and my wife for 6 to 8 months since my wife had to have c-section.

My wife submitted N-400 for citizenship on April 28, 2016 and we were hoping that she would become citizen and we would have enough time to file for adjustment of status for my mother-in-law but it doesn't look like she will be citizen anytime soon since USCIS keeps saying they are backed up and the case is not out of normal processing time.

With that being said, would it be best at this point to file for an extension (Form I-539) so my mother-in-law's authorized stay doesn't expire? (expiration date: Jan 7th 2017)

On top of all this, her Indian passport is expiring on Feb 6th 2017 and indian embassy will not allow her to renew her passport in the US unless she has valid I-797 (approval notice)

Appreciate your assistance and thank you very much for providing your thoughts on what is the best route to navigate through this complex situation.

[EM_Vandaveer 2,408]

Your wife can file for her mother's AOS once she naturalizes even if her mother overstays by then. That's not ideal, obviously.

Edited November 21, 2016 by EM_Vandaveer

[Hypnos 6,576]

The I-539 stands no chance of being approved since she's been spending so much time in the US recently, and is a de facto resident since she lives here 50% of the time. Filing a non-frivolous I-539 prior to her I-94's expiry would grant her a legal status ("tolling"), but it likely wouldn't take USCIS long to formally deny it.

As stated above, any overstay she incurred would not prevent her from adjusting status once your wife became a US citizen.

[JFH 12,190]

Taking care of a child on a visitor visa, even a child to whom the visitor is related by blood, is considered "work" by US immigration rules and therefore not permitted.

Don't shoot the messenger.

[EM_Vandaveer 2,408]

Taking care of a child on a visitor visa, even a child to whom the visitor is related by blood, is considered "work" by US immigration rules and therefore not permitted.

Don't shoot the messenger.

True. However if eventually AOS will be filed for the violator of this rule by a USC whose immediate relative said violator is, it will not cause any issues that such violation has occurred.

[kdn103 1]

Thank you all for quick response.

Just to make sure i understand correctly, at this point we don't need to take any action and its ok for her to go out of statud and once my wife becomes citizen, we just file adjustment of status?

Her being out of status and over staying her authorized stay won't cause any issue right?

[Hypnos 6,576]

Any alien out of status is deportable and could be detained by ICE. It's unlikely she would cross ICE's radar, but it's happened before.

[kdn103 1]

Ofcourse anyone out of status can be deported.

You guys know this stuff in and out so i am looking for advice on what is the best route to take to make sure we dont run into headaces down the road.

Wife filed N-400 on April 28th and fingerprinting was done on may 24th. USCIS status still shows

"On April 29, 2016, we received your Form N-400, Application for Naturalization , Receipt Number NBC*00XXXXXXX, and sent you the receipt notice that describes how we will process your case. Please follow the instructions in the notice. If you do not receive your receipt notice by May 29, 2016, please call Customer Service at 1-800-375-5283. If you move, go to www.uscis.gov/addresschange to give us your new mailing address."

There are people who filed much later are already citizen and we can get USCIS to give an answer as to whats going on.

With that being said, im afraid there is some issue delaying my wifes citizenship application and that would put my mother in law out of status by jan 7 if adjustment of status is not filed.

Is this is complicated than do u recommend i higher a lawyer?

[aleful 1,905]

hi

it's not complicated, overstay is forgiven for parents of a USC

your wife can fill out the forms once she becomes a USC, a lawyer isn't needed

[kdn103 1]

Thank you very much!

[KierenHby 899]

There's a chance her extension could be denied (she is practically living in the US on a B2). A denied I-797 would then result in her passport not being renewed.

[kdn103 1]

Yea according to indian embassy, inorder for visitor to renew their passport while in US, they have to have valid i-797.

I think best thing for us now is to see how long it will take for my wife to become citizen.

We made an info pass appointment @ the san jose office for tomorrow morning to find out whats causing thr delay.

[kdn103 1]

We just had an info pass appointment today to find out what is going on with my wife's N-400. We found out that the application is being held due to background check from FBI since May 2nd and according to officer at info pass appointment, there is nothing we can do to assist FBI in providing any info they might need. Is this correct? Is there any thing that can be done so application moves to next stage?

Every time we called USCIS, they would tell us the application is in normal time frame and there is nothing we can do at this time.

[EM_Vandaveer 2,408]

You just have to wait it out.

[Hypnos 6,576]

Correct. There's nothing you can do to expedite these checks prior to an interview.