i130 Can the son of my mother in law wait for his green card inside the USA if he is in Mexico?

[calengineer 4]

My mother in law (MIL) currently lives in the USA and is a green card holder (through her daughter US citizen). MIL has a minor 11 year old son that is currently in Mexico. Just 4-5 months ago MIL sent the I-130 so her son can join her in the USA. Unfortunately, due to their financial situation, the mother needs to be in the USA to financially support herself and her son in Mexico. The son is currently staying with relatives in Mexico. 

Things have turned sour and the relatives don't want to take care of the kid anymore. My MIL wants to know if there is a way that she can bring her son earlier so he can wait for his residency in the US. She's a bit desperate because she cannot go back to Mexico where she will not be able to support him or herself. 

She applied 4-5 months ago and according to the visa bulletin for June he will still have to wait at least 1 1/2 to 2 years until a Visa becomes available. 

What can she do, can the son come in a tourist visa? or is there another way? 

Your support will be highly appreciated.

[Roel 7,191]

Even if he gets a tourist visa (which in this situation is doubtful I'm sorry) he could not spent more than 6 months (or whatever time the officer gives him. Can be less. Even only few weeks) and then go back to Mexico. You mention difficult financial situation so student visa is out of question also. 

[calengineer 4]

6 minutes ago, Roel said:

Even if he gets a tourist visa (which in this situation is doubtful I'm sorry) he could not spent more than 6 months (or whatever time the officer gives him. Can be less. Even only few weeks) and then go back to Mexico. You mention difficult financial situation so student visa is out of question also. 

But why do you think the tourist visa is doubtful. As a matter of fact, a tourist visa would serve them well. Even if he has to go back every 6 months or so at least is better than not being with her mom at all. 

[Roel 7,191]

I said it's doubtful with clear immigration intent (I-130) and all the child's ties being in the US (mother). 

 

And assuming he'd be allowed those 6 months then what later? Coming to Mexico where there is no one to take care of him? If he'd want to come back to USA soon after those 6 months there is a chance he'd be denied entry. Since he'd be clearly using tourist visa to live in the USA. It's harsh but probably the best case scenario is mom visiting the son in Mexico during the process. 

Edited June 1, 2017 by Roel

[Unlockable 7,306]

2 hours ago, calengineer said:

But why do you think the tourist visa is doubtful. As a matter of fact, a tourist visa would serve them well. Even if he has to go back every 6 months or so at least is better than not being with her mom at all. 

 Every CO officer treats visitor visa applicants as if they have immigrant intent, as in they believe that the applicant wants to use the visitor visa to live in the US. So when the son applies for a visitor visa, the CO will see he has a pending immigrant case which means he wants to live in the US anyway. That is exactly the case that you are trying to do. You want him to be living in the US until the I-130 petition is approved, which is against the rules.

 

The coming in and out every 6 months also would trigger the border agent to turn him back. Rule of thumb is to stay of out the US as much or twice as much as you were in. So if he spent 6 months in the US he should spend at least 6 months to a year out. Coming in and out will likely get he denied entry.

 

One of the biggest reasons for these rules is the 11 year old son will need to be in school during this time. If he is using a visitor visa to be here for 6 months how is he going to be educated? Because he can NOT be enrolled in public school. Again, it is illegal because you are using tax payers dollars for someone who does not have status.

[Penguin_ie 5,987]

You may need to think creatively... are there any Mexican boarding schools she could afford?  Does the son have friends at school whose parents may want to make a little extra money by looking after him?

[Jojo92122 1,924]

5 hours ago, calengineer said:

But why do you think the tourist visa is doubtful. As a matter of fact, a tourist visa would serve them well. Even if he has to go back every 6 months or so at least is better than not being with her mom at all. 

It's doubtful because a tourist visa is not for living in the US.  It's for brief visits.  Not for living in the US for 1 - 2 years.   

 

There is nothing that would allow your BIL to come early.  He must wait like everyone else.  Your MIL will need to make other arrangements for your BIL in Mexico.

 

Sorry.

[geowrian 22,336]

The son can visit via a tourist visa for up to the duration of stay determined at POE (max: 6 months), or can study in the US via a student (F-1) visa. However, he still needs to return home to interview - he cannot enter the US with the intent to stay in the US. He also cannot overstay any visa or else he will become ineligible for AOS, and could earn a 3/10 year bar on any visa upon exit.

 

However, the student visa seems unlikely if there is not sufficient financial capabilities available, and given his US-based ties. The tourist visa also depends on his ties to Mexico, and is very unlikely given his current situation (age, pending immigration petition, US-based family).

[Transborderwife 4,666]

Boarding school sounds like a good option 

[Jojo92122 1,924]

Student visas are not available to 11 years old for public elementary or public middle school.  The BIL would need to be accepted to a private school.  Mom and family would not likely be able to afford private school tuition.

Edited June 1, 2017 by Jojo92122

[Transborderwife 4,666]

8 minutes ago, Jojo92122 said:

Student visas are not available to 11 years old for public elementary or public middle school.  The BIL would need to be accepted to a private school.  Mom and family would not likely be able to afford private school tuition.

Not entirely true: https://travel.state.gov/content/visas/en/study-exchange/student/foreign-students-in-public-schools.html

[Jojo92122 1,924]

3 minutes ago, Transborderwife said:

Not entirely true: https://travel.state.gov/content/visas/en/study-exchange/student/foreign-students-in-public-schools.html

Entirely true.  Where does it say it's okay for public primary or middle school?  Only public secondary/high school is mentioned, and this is limited to one year.

Edited June 1, 2017 by Jojo92122

[Transborderwife 4,666]

2 minutes ago, Jojo92122 said:

Entirely true.  Where does it say it's okay for public primary or middle school?  Only public secondary/high school is mentioned.

Sorry yes, correct about elementary school.

[Boiler 43,771]

Can do a Year at a State school but has of course to pay, do not see how a Visitor Visa is practical, he needs to go to school.

[Jojo92122 1,924]

29 minutes ago, Boiler said:

Can do a Year at a State school but has of course to pay, do not see how a Visitor Visa is practical, he needs to go to school.

11 years old do not qualify for student visas to attend public elementary or public middle school.  What you are thinking of is limited to one year of public high school.