Parents of USC and AOS, I need somethings cleared up

[MarisolT 1]

I recently became a USC, I want to help my parents get their green cards but im confused on a couple of things...

My parents entered on a tourist visa back in 1993 and never left, it is my understanding that because they entered legally that they can AOS in the United States without having to return to their home country, is this correct?

Thank you in advance for your replies

[Harpa Timsah 13,258]

Yes, it's like a spousal AOS case. Follow the guides for "spouse inside USA" and substitute parent (and follow the instructions for parent on the forms at uscis.gov). Good luck.

[JeroenAndMichelle 28]

I could be wrong, but an overstay on a tourist visa, and especially that long, doesn't that make them illegal?

From another topic:

An alien in and admitted to the United States subject to any grounds of removal specified in the Immigration and Nationality Act. This includes any alien illegally in the United States, regardless of whether the alien entered the country by fraud or misrepresentation or entered legally but subsequently violated the terms of his or her nonimmigrant classification or status.

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=a097136d2035f010VgnVCM1000000ecd190aRCRD&vgnextchannel=b328194d3e88d010VgnVCM10000048f3d6a1RCRD

If that is the case, they are probably ineligible for AOS.

But, like said, I could be wrong about that.

[Harpa Timsah 13,258]

Overstay is irrelevant/forgiven for immediate relatives of US Citizens, which is parents, spouses, and children under 21. They are eligible for AOS.

[MarisolT 1]

This is the conflicting answers I have been getting/reading, looks like the majority of cases are for spouses of USC but as Harpa said "immediate relatives" does include parents... (if im reading the forms correctly)

[Dakine10 5,452]

This is the conflicting answers I have been getting/reading, looks like the majority of cases are for spouses of USC but as Harpa said "immediate relatives" does include parents... (if im reading the forms correctly)

For adjustment of status, all immediate relatives are eligible after overstay, not just spouses. Of course that assumes there are no other immigration violations that would make them ineligible to adjust. I'll summarize the relevant sections of the immigration and nationality act below.

INA 245©(2)

AOS shall not be applicable to an alien other than an immediate relative as defined in section 201(b) who accepts unauthorized employment prior to filing AOS, or who has failed to maintain continuously a lawful status since entry into the United States.

INA 201(b)(2)(a)(1)

Immediate relatives. - For purposes of this subsection, the term "immediate relatives" means the children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age.

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Part of the confusion is that besides the convoluted language that the INA uses, it is also different in this case between AOS eligibility and waiver eligibility. When it's a waiver of the 3/10 year illegal presence bar, only spouses and children are eligible, not parents.

INA 212(a)(9)(B)(v)

Waiver.-The Attorney General has sole discretion to waive the illegal presence bar in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the refusal of admission would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien.

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So in your case, your parents are eligible to adjust status as long as you are at least 21 years old and they have no other immigration violations that would make them ineligible. But if they were to leave the USA before they become permanent residents, you would not be able to file a hardship waiver for them to return and they would be subject to the 10 year entry bar for accumulated illegal presence.

Hope that helps.

[katgrl 14]

+1

For adjustment of status, all immediate relatives are eligible after overstay, not just spouses. Of course that assumes there are no other immigration violations that would make them ineligible to adjust. I'll summarize the relevant sections of the immigration and nationality act below.

INA 245©(2)

AOS shall not be applicable to an alien other than an immediate relative as defined in section 201(b) who accepts unauthorized employment prior to filing AOS, or who has failed to maintain continuously a lawful status since entry into the United States.

INA 201(b)(2)(a)(1)

Immediate relatives. - For purposes of this subsection, the term "immediate relatives" means the children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age.

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Part of the confusion is that besides the convoluted language that the INA uses, it is also different in this case between AOS eligibility and waiver eligibility. When it's a waiver of the 3/10 year illegal presence bar, only spouses and children are eligible, not parents.

INA 212(a)(9)(B)(v)

Waiver.-The Attorney General has sole discretion to waive the illegal presence bar in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the refusal of admission would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien.

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So in your case, your parents are eligible to adjust status as long as you are at least 21 years old and they have no other immigration violations that would make them ineligible. But if they were to leave the USA before they become permanent residents, you would not be able to file a hardship waiver for them to return and they would be subject to the 10 year entry bar for accumulated illegal presence.

Hope that helps.

[rosie's baby 5]

May a USC sponsor a step parent also? or is it only a natural parent.

[Stann 3]

I am couting the days until i become a USC so i can bring my mum over - or should i say start the paperwork! I dont think its fair that someone who has been here illegally is rewarded by not having to be apart from their USC relative. They are able to file paperwork and get greencard without having to be apart while i spend 3 years and thousands of miles and a 5 hour time difference away from my mum while we do things the legal way.

Can someone explain to me why USCIS rewards bad behaviour - im sorry but your parents should have to reuturn home and file i130 like everyone else and they should be punished for illegal overstay.

[NigeriaorBust 4,087]

May a USC sponsor a step parent also? or is it only a natural parent.

If your bio parent married your step while you where still a child and if the marriage is still there or ended at the death of your bio and you can prove that the parent/child relationship still exists you can petition.

[MarisolT 1]

Thanks for the detailed answer Dakine

[Brother Hesekiel 2,235]

Can someone explain to me why USCIS rewards bad behaviour - im sorry but your parents should have to reuturn home and file i130 like everyone else and they should be punished for illegal overstay.

The rules are the rules and AOS for immediate relatives of US citizens is in the rules.

There are more ways than one to Rome, and you may have chosen the long and safe one (emphasis on choice), whereas others have chosen the shorter but more dangerous one. Life is full of choices, so don't be a party pooper if somebody who chose another route than you gets to his destination a bit earlier.