Can B2 Parent Adjust status within US?

[Sunshine_yes 0]

Hi Community,

 

My parent has a B2 visa and she is within US for two months, her I-94 expires in Jan. 2018. I'm wondering if I can sponsor her for I-130 and I-485 when she is in the US. If I do the concurrent filing now, I don't think she can get any of these forms approved other than receipt notice before the expiration date of her I-94. My questions are: 1. what is the best option for her: should I apply her in the US with B2 entry, or should I apply her abroad? 2. If I apply her in the US, is the period between the expiration date of her I-94 and pending I-485 considered illegal? To be clear, she doesn't have any intent to immigrate when she applied her B2 visa and entered US. I want to sponsor her at this time because the POE office only gave her three-months stay, and I really want her to spend more time with me. I don't know how long she will be granted for entry next time. Any suggestions will be appreciated. Thank you!

[geowrian 22,338]

Do you want her to just spend more time with you or to actually live in the US as a permanent resident? As an LPR, she needs to live in the US.

Also, are you a USC? I'll assume yes but please confirm.

 

You can concurrently file the I-130 and I-485. But keep in mind you need to be able to sponsor her (or find a joint sponsor you will)...usually parents cannot be added to insurance and she won't be eligible for many public programs for at least 5 years.

[WeGuyGal 1,052]

15 hours ago, Sunshine_yes said:

Hi Community,

 

My parent has a B2 visa and she is within US for two months, her I-94 expires in Jan. 2018. I'm wondering if I can sponsor her for I-130 and I-485 when she is in the US. If I do the concurrent filing now, I don't think she can get any of these forms approved other than receipt notice before the expiration date of her I-94. My questions are: 1. what is the best option for her: should I apply her in the US with B2 entry, or should I apply her abroad? 2. If I apply her in the US, is the period between the expiration date of her I-94 and pending I-485 considered illegal? To be clear, she doesn't have any intent to immigrate when she applied her B2 visa and entered US. I want to sponsor her at this time because the POE office only gave her three-months stay, and I really want her to spend more time with me. I don't know how long she will be granted for entry next time. Any suggestions will be appreciated. Thank you!

Have her previous B2 trips been for long durations, and any previous extension of stays filed?  Those could be the reason(s) for a 3-month stay. 

 

Spending "more time" is not a valid reason to file i-485. She has to be able to live permanently in the US and maintain ties to the US as a GC holder. What is her home country?

[Ryan H 3,834]

Moved from What Visa Do I Need - Family Based Immigration to Adjustment of Status from Work, Student, & Tourist Visas forum.

[Sunshine_yes 0]

She was in the US for five month in the first half of 2017, and she came back again three month after. On the second visit within the same calendar year, she was only given 90 days stay. I'm wondering if I still can fill I-485 for her before her I-94 expires? I've consult with attorneys and they told me that there is a new rule that people can not adjust their status within the first 90 days, but she has to leave before I-94 expires. Can I still file I-485 two or three weeks before her I94 expiration in order to get case notification? If I file I-130 after she leaves the country, are  there any other forms that I need to file along with I-130? Thank you!

[obanla 37]

you can file for her while shes here, and you will have to sponsor her, as long as she gets a receipt for the filing shes not illegal.

[Sunshine_yes 0]

Is there a 90-day rule that people cannot file I-485 to adjust status? I’m trying to look up online, not much information about it! 

[azblk 338]

1 hour ago, Sunshine_yes said:

Is there a 90-day rule that people cannot file I-485 to adjust status? I’m trying to look up online, not much information about it! 

No there is not. Atleast not yet. You can file for her no problem

[Sunshine_yes 0]

Does anyone know what the consequences are if I-485 and I-130 are denied! Just curious! Can we file again? 

[azblk 338]

3 hours ago, Sunshine_yes said:

Does anyone know what the consequences are if I-485 and I-130 are denied! Just curious! Can we file again? 

It depends on the reason for denial. If the denial is related to fraud or another inadmissibility criteria like being a former NAZI, KGB or false claim to US citizenship - you can not refile. If it is related to mundane things like lack of affidavit of support, not responding to RFE and the like you can refile. 

This is a pretty straight forward case. You are a US citizen and she is your mother so she qualifies for a green card as an immediate relative of a USC. Do NOT overthink it.  Just get all the required paperwork ready and file.

Edited December 17, 2017 by azblk

[jayh 2]

12 hours ago, Sunshine_yes said:

Is there a 90-day rule that people cannot file I-485 to adjust status? I’m trying to look up online, not much information about it! 

Potentially yes. I'm not a lawyer, but I think the idea is that when your parents entered, they represented to the CBP officer as not having an immigration intent. "I changed my mind in 90 days" can be deemed suspicious. I would read the following articles and preferably consult an immigration lawyer

 

http://www.aila.org/infonet/dos-cable-on-change-to-ina-212a6ci

https://wolfsdorf.com/blog/5-things-know-new-department-state-90-day-rule-regarding-misrepresentation-based-conduct-u-s-adjustment-status-change-status-now-death-trap/

http://blog.cyrusmehta.com/2017/09/a-few-suggestions-to-defend-oneself-against-a-misrepresentation-finding-under-the-90-day-rule.html

 

Edited December 17, 2017 by jayh

[azblk 338]

7 minutes ago, jayh said:

Potentially yes. I'm not a lawyer, but I think the idea is that when your parents entered, they represented to the CBP officer as not having an immigration intent. "I changed my mind in 90 days" can be deemed suspicious. I would read the following articles and preferably consult an immigration lawyer

 

http://www.aila.org/infonet/dos-cable-on-change-to-ina-212a6ci

https://wolfsdorf.com/blog/5-things-know-new-department-state-90-day-rule-regarding-misrepresentation-based-conduct-u-s-adjustment-status-change-status-now-death-trap/

http://blog.cyrusmehta.com/2017/09/a-few-suggestions-to-defend-oneself-against-a-misrepresentation-finding-under-the-90-day-rule.html

 

That rule only applies to consular processing and not AOS. As you can see it is a department of state rule and not a USCIS rule. Also immigrant intent is irrelevant when it comes to IR-1 category, you CAN NOT be denied AOS based on intent alone.

[jayh 2]

7 minutes ago, azblk said:

That rule only applies to consular processing and not AOS. As you can see it is a department of state rule and not a USCIS rule. Also immigrant intent is irrelevant when it comes to IR-1 category, you CAN NOT be denied AOS based on intent alone.

Good to know. Thanks for your clarifications!

[Sunshine_yes 0]

Thank you guys for all your efforts. I think my case should be very straight forward. I'm a US citizen, and want to sponsor my parent with B2 visa adjust status within US. My only concern is the new 90-day rule, because she was only granted for 90 days on the I-94. If she would have 180 days on the I-94, I wouldn't have asked so many questions. Just want to clarify one more time:  if I decided to file I-130 along with I-485 concurrently, will her stay become illegal when her I-94 expires while the cases are pending?

[geowrian 22,338]

2 minutes ago, Sunshine_yes said:

Thank you guys for all your efforts. I think my case should be very straight forward. I'm a US citizen, and want to sponsor my parent with B2 visa adjust status within US. My only concern is the new 90-day rule, because she was only granted for 90 days on the I-94. If she would have 180 days on the I-94, I wouldn't have asked so many questions. Just want to clarify one more time:  if I decided to file I-130 along with I-485 concurrently, will her stay become illegal when her I-94 expires while the cases are pending?

Once an I-485 is properly filed (which means an I-130 + I-485 concurrent filing in your case), the AOS applicant is granted authorized stay while their case is pending.