[Edodancer]

Hi all,

My parents will be coming from Italy next Summer and intend to apply for US permanent residency.

I downloaded and read the I-130, I-485, I-693, and I-864 forms (and pertaining instructions), but still have a few questions:

• My parents will be entering the US under the Visa Waiver Program with the ESTA document, an approved travel authorization that allows staying on US soil for up to 90 days (not a visa): after submitting the I-130 and I-485 forms concurrently, can they stay in the US even if processing their applications takes longer than 90 days?
  
• Section 14 of form I-130 (on the right side) requires that an arrival record number (I-94) be provided; since my parents travel under the Visa Waiver Program, they won't have one. Can I leave that field blank?
  
• In section D, question 1, of my mother's I-130, I believe I should enter my father's and my name - and vice versa. Is that correct?
  
• The I-485 instructions on medical examinations, on page 4, read: "When required, submit a medical examination report on form I-693". What does "when required" exactly mean? In other words, how do I know whether form I-693 will be required? Will I be notified after the I-130 and I-485 are reviewed?
  
• My parents can financially support themselves: do I still need to file an I-864 (Affidavit of Support) for them?
  
• On page 4 of the I-485 instructions, regarding evidence of eligibility, I read: "Attach a copy of the approval notice for an immigrant petition that makes a visa number immediately available to you...". Is that number given after the I-130 is approved?
  
• I understand that the final steps of the process might involve an interview at an USCIS office (see page 9 of the I-485 instructions): would my parents have to interview by themselves or would I be allowed to be there and help translate? They do speak basic English, but not that well.

Thanks in advance for your insight!

Edoardo

[Penguin_ie]

The visa waiver program is to visit; to use it with the intent to immigrate and adjust status is illegal.

[Ryan H]

My parents will be coming from Italy next Summer and intend to apply for US permanent residency.

Stop right here, in order for you parents to obtain permanent residency, you will have to file a petition on their behalf (I-130 for both parents). After the petition is approved, they will be able to apply for an IR-5 visa at the Consulate in Napoli. When they enter the US using that visa, the CPB admission stamp on the passport page next to the visa will allow the visa page to act as a temporary green card until their actual green cards arrive in the mail.

Using the Visa Waiver Program to immigrate is fraud. Also, if your parents were to come next summer, they would have to answer CBP questions truthfully (e.g. how do they intend to stay), after answering CBP with what they are intending to do, CBP would deny them entry and tell them what they need to do in order to move to the US (they would also probably be flagged which would invalidate the ESTA and would have to obtain a B2 visa if they wanted to visit the US). If they lied to CBP and you try to do what you have said in your post, they would be guilty of material misrepresentation. Material misrepresentation would result in deportation and a lifetime entry ban to the US for your parents.

[Edodancer]

The visa waiver program is to visit; to use it with the intent to immigrate and adjust status is illegal.

Stop right here, in order for you parents to obtain permanent residency, you will have to file a petition on their behalf (I-130 for both parents).

Penguin_ie, Ryan,

Thank you so much for your quick replies. I should probably let that USCIS service representative know that what she told me over the phone is diametrically opposite to what you just said. I did tell her about my parents' ESTA document, but at this point I guess she doesn't even have a clue of what that means. I'm glad I found out about this now rather than later.

Ryan - if the application for an IR-5 visa is to be submitted at a US consulate, I guess the one in Milano (where my parents live) will do as well. Or is there a specific reason why it should be the one in Napoli? Also, do I understand correctly you're suggesting that I submit the I-130 and the I-485 separately because my parents first need to receive an IR-5 visa?

Thanks again!

Edoardo

[JimVaPhuong]

Penguin_ie, Ryan,

Thank you so much for your quick replies. I should probably let that USCIS service representative know that what she told me over the phone is diametrically opposite to what you just said. I did tell her about my parents' ESTA document, but at this point I guess she doesn't even have a clue of what that means. I'm glad I found out about this now rather than later.

Ryan - if the application for an IR-5 visa is to be submitted at a US consulate, I guess the one in Milano (where my parents live) will do as well. Or is there a specific reason why it should be the one in Napoli? Also, do I understand correctly you're suggesting that I submit the I-130 and the I-485 separately because my parents first need to receive an IR-5 visa?

Thanks again!

Edoardo

The only US consulate in Italy that handles immigrant visa applications is the one in Naples.

http://italy.usembassy.gov/visa/iv.html

You submit two I-130's, one for each of your parents. After the petitions are approved they will go to the National Visa Center, where you'll submit an affidavit of support, and your parents will submit a choice of agent. When you finish processing at the NVC then the petitions will be sent to the consulate in Naples, who will send an invitation package to your parents. They will attend a visa interview at the consulate. After they get their visas they will enter the US as immigrants, and they will automatically receive a green card within weeks of their arrival. No I-485 will be required.

[Darnell]

Thank you so much for your quick replies. I should probably let that USCIS service representative know that what she told me over the phone is diametrically opposite to what you just said.

It's major gaffes like this - that help us to label the USCIS information line the 'mis-information line'.

Most likely, you spoke to the first person that answered the phone, a CSR.

Suggest, instead, you call back, and ask for an ISO. Pose yer questions to an ISO, and let us know the results, soonish .

[sandranj]

A person on VWP CANNOT change his or her status while still in the United States. There are just two rare exceptions, such as U visas and asylum.

[JimVaPhuong]

A person on VWP CANNOT change his or her status while still in the United States. There are just two rare exceptions, such as U visas and asylum.

There's also a very specific exception for those who are adjusting status on the basis of being an immediate relative of a US citizen.

8 CFR, section 245.1:

(b) Restricted aliens. The following categories of aliens are ineligible to apply for adjustment of status to that of a lawful permanent resident alien under section 245 of the Act, unless the alien establishes eligibility under the provisions of section 245(i) of the Act and § 245.10 , is not included in the categories of aliens prohibited from applying for adjustment of status listed in § 245.1(c) , is eligible to receive an immigrant visa, and has an immigrant visa immediately available at the time of filing the application for adjustment of status: (Revised 10/1/94; 59 FR 51091 )

...

(7) Any Any alien admitted as a visitor under the visa waiver provisions of 8 CFR 212.1(e) or (q) , other than an immediate relative as defined in section 201(b) of the Act; (Revised effective 11/28/09; 74 FR 55725 ) ; (Amended 7/23/97; 62 FR 39417 )

[Edodancer]

There's also a very specific exception for those who are adjusting status on the basis of being an immediate relative of a US citizen.

8 CFR, section 245.1:

(b) Restricted aliens. The following categories of aliens are ineligible to apply for adjustment of status to that of a lawful permanent resident alien under section 245 of the Act, unless the alien establishes eligibility under the provisions of section 245(i) of the Act and § 245.10 , is not included in the categories of aliens prohibited from applying for adjustment of status listed in § 245.1(c) , is eligible to receive an immigrant visa, and has an immigrant visa immediately available at the time of filing the application for adjustment of status: (Revised 10/1/94; 59 FR 51091 )

...

(7) Any Any alien admitted as a visitor under the visa waiver provisions of 8 CFR 212.1(e) or (q) , other than an immediate relative as defined in section 201(b) of the Act; (Revised effective 11/28/09; 74 FR 55725 ) ; (Amended 7/23/97; 62 FR 39417 )

Thanks, JimVaPhuong - what you said, to me translates as: "there is an exception to the limitations above - if the parent of a US citizen entered the US under the VWP, s/he may apply for change of status once in the US".

I haven't had a chance to call USCIS, but I did call an immigration lawyer and left a message asking the very same question. Let's see what their take is on the matter.

Cheers,

Edoardo

P.S. #1: I tried adding a link to my post but the system removed part of the URL, making it unusable. I looked all over my settings to see what to do to allow posting links but couldn't find anything. Suggestions?


P.S. #2: I can't see the "My Assistant" link anywhere - how do I activate or find it? Thanks!

[ceadsearc]

Yes and no. If they are already is visiting and plans change and they decide to stay, yes they can adjust. To plan to visit and adjust as you are proposing is illegal and likely to throw up red flags.

[JimVaPhuong]

Thanks, JimVaPhuong - what you said, to me translates as: "there is an exception to the limitations above - if the parent of a US citizen entered the US under the VWP, s/he may apply for change of status once in the US".

Don't read that exception as being a blanket endorsement by the United States government for your parents to the come to the US using the VWP and then apply for adjustment of status. There are still some major issues you've got to deal with.

First, the VWP is not an immigrant visa. In fact, it's not a visa of any sort, and it's even more restrictive than a B2 visitors visa. Very few visas allow for an alien to enter the United States with the intention of becoming an immigrant before they leave, and the VWP is not one of them. Immigrant intent is specifically not allowed. If a CBP officer has a gut feeling that your parents intend to apply for green cards then they'll be pulled into secondary inspection and grilled about their intentions. If they admit that they intend to apply for green cards then they will be refused admission, and put on the next plane back to Italy. If it was perfectly legal to enter the US using the VWP with the intention of applying for a green card, as you're obviously planning, then they wouldn't be denying anyone admission.

Here's the deal about immigrant intent. Adjustment of status can't be denied solely for immigrant intent, even if USCIS has strong evidence that the alien intended to immigrate when they entered the US. A BIA decision back in the 1980's determined that immigrant intent, while a serious negative factor, did not outweigh the positive factor of being an immediate relative of a US citizen.

Now, with the above in mind, an astute CBP officer might see solid evidence of immigrant intent. For example, if your parents are pulled into secondary inspection then their luggage is going to be searched. If they find documents that would be needed for adjustment of status (birth certificates, marriage certificates, etc.) but would not normally be needed by someone merely visiting the US then they may decide to refuse to admit them, or they may decide to set them up. They could present your parents with a written statement declaring that they understand the terms of the VWP, and that they do not intend to immigrate, and require your parents to sign these statements before allowing them to be admitted (I've seen this happen to at least two other people on VJ). If your parents sign the statements and then subsequently apply for adjustment of status then USCIS has got them nailed - they have evidence from the CBP report of your parent's immigrant intent, and evidence from their signed statements that they lied about their intent because they applied for green cards anyway. Their AOS would be denied, and they would receive a ban from the United States for material misrepresentation, potentially for the rest of their lives. Even worse, since they entered using the VWP they would have waived any right to appeal any decision by an immigration officer. The IO would order them summarily deported (they'd be taken into custody) and there would be absolutely nothing anyone could do to stop it.

Is that worth skipping a few months waiting for a petition to be approved?

When Congress made it possible for an immediate relative of a US citizen to adjust status in the United States it was not their intention that it be used as an alternative to the normal immigrant visa process. It was intended to be used in extraordinary circumstances when an immediate relative finds themselves in the United States, and forcing them to return to their home country for an immigrant visa interview would be impossible, impractical, or just needlessly bureaucratic. USCIS used to be very strict about enforcing the immigrant intent restrictions, but courts have limited their ability to enforce it. The result has been widespread abuse of the AOS process by anyone who can manage to get any sort of visa to visit the United States. When CBP or USCIS sees an opportunity to catch an abuser, they usually jump on it.

I haven't had a chance to call USCIS, but I did call an immigration lawyer and left a message asking the very same question. Let's see what their take is on the matter.

Cheers,

Edoardo

The lawyer will probably recommend they try to adjust status. Many lawyers would do the same because they get more money that way.

P.S. #1: I tried adding a link to my post but the system removed part of the URL, making it unusable. I looked all over my settings to see what to do to allow posting links but couldn't find anything. Suggestions?

There are some immigration sites that you can't link to from this site, mainly because members at those sites openly advocate immigration related activities which are not legal.

P.S. #2: I can't see the "My Assistant" link anywhere - how do I activate or find it? Thanks!

I don't understand what you're talking about here.

[NoVisaCanuck]

Don't read that exception as being a blanket endorsement by the United States government for your parents to the come to the US using the VWP and then apply for adjustment of status. There are still some major issues you've got to deal with.

First, the VWP is not an immigrant visa. In fact, it's not a visa of any sort, and it's even more restrictive than a B2 visitors visa. Very few visas allow for an alien to enter the United States with the intention of becoming an immigrant before they leave, and the VWP is not one of them. Immigrant intent is specifically not allowed. If a CBP officer has a gut feeling that your parents intend to apply for green cards then they'll be pulled into secondary inspection and grilled about their intentions. If they admit that they intend to apply for green cards then they will be refused admission, and put on the next plane back to Italy. If it was perfectly legal to enter the US using the VWP with the intention of applying for a green card, as you're obviously planning, then they wouldn't be denying anyone admission.

Here's the deal about immigrant intent. Adjustment of status can't be denied solely for immigrant intent, even if USCIS has strong evidence that the alien intended to immigrate when they entered the US. A BIA decision back in the 1980's determined that immigrant intent, while a serious negative factor, did not outweigh the positive factor of being an immediate relative of a US citizen.

Now, with the above in mind, an astute CBP officer might see solid evidence of immigrant intent. For example, if your parents are pulled into secondary inspection then their luggage is going to be searched. If they find documents that would be needed for adjustment of status (birth certificates, marriage certificates, etc.) but would not normally be needed by someone merely visiting the US then they may decide to refuse to admit them, or they may decide to set them up. They could present your parents with a written statement declaring that they understand the terms of the VWP, and that they do not intend to immigrate, and require your parents to sign these statements before allowing them to be admitted (I've seen this happen to at least two other people on VJ). If your parents sign the statements and then subsequently apply for adjustment of status then USCIS has got them nailed - they have evidence from the CBP report of your parent's immigrant intent, and evidence from their signed statements that they lied about their intent because they applied for green cards anyway. Their AOS would be denied, and they would receive a ban from the United States for material misrepresentation, potentially for the rest of their lives. Even worse, since they entered using the VWP they would have waived any right to appeal any decision by an immigration officer. The IO would order them summarily deported (they'd be taken into custody) and there would be absolutely nothing anyone could do to stop it.

Is that worth skipping a few months waiting for a petition to be approved?

When Congress made it possible for an immediate relative of a US citizen to adjust status in the United States it was not their intention that it be used as an alternative to the normal immigrant visa process. It was intended to be used in extraordinary circumstances when an immediate relative finds themselves in the United States, and forcing them to return to their home country for an immigrant visa interview would be impossible, impractical, or just needlessly bureaucratic. USCIS used to be very strict about enforcing the immigrant intent restrictions, but courts have limited their ability to enforce it. The result has been widespread abuse of the AOS process by anyone who can manage to get any sort of visa to visit the United States. When CBP or USCIS sees an opportunity to catch an abuser, they usually jump on it.

JimVaPhuong, I am a U.S. citizen and my spouse is Canadian so she enters the U.S. without any 'visible' visa on her passport (but must be visitor status). My two under-18 yrs old children will be naturalized through a N-600K so is it OK that I submit the I-130 at the same time with the AOS for my spose together after her entry into the U.S.? In other words, she will truthfully have intent to immigrate but the grey area is how Canadians can arrive with no visa (or at least I don't know what exactly that status is?).

Edited by NoVisaCanuck, 27 March 2012 - 11:00 AM.