adjusting status for mother in law

[M & J 5]

Hello,

 

I need some guidance.  We received approval for my mother-in-law's i-130 and planned to submit the i-485 once she returned on her b-2 visitor.   I just finished the application, but she is scheduled to return to her home country in about a month. The plan was for her to return again once we knew when her biometric appointment was scheduled.  I'm hesitant to submit now because the i-485 instructions indicate her application may be denied if she leaves the country while her application is pending even though she is leaving so not to overstay her visitor's visa.  I am aware that I can also file an i-131 with the i-485 but am concerned that I will not obtain the travel document before she is scheduled to leave.

 

Can anyone give me guidance how best to approach this situation? Thanks in advance! 

 

 

 

[p-ana 933]

If she leaves with a pending aos (i485) petition without having ap (i131) or green card, her case will be deemed abandoned and it will be denied.

 

If you want to do this right now, make sure you send it in before her the date on her i94 so she won’t be overstaying. If you apply she won’t be able to leave and come back without ap or green card. Ap is taking around 6 months right now, the green card may take a lot longer but depends on location.

 

if it’s decided not to file right now, she can’t come back with her visitors visa and plan to adjust status, just so you know 

[WeGuyGal 1,052]

Any i485 is deemed abandoned as soon as one leaves the US.

Either she waits a few months for AP after i485 submitted, or she interviews in her country. There's a good change she may not be readmitted into the US on the b2.. as the i130 has been approved.

[Crazy Cat 39,194]

31 minutes ago, M & J said:

We received approval for my mother-in-law's i-130 and planned to submit the i-485 once she returned on her b-2 visitor. 

A person can not enter the US via a B2 with the intent to file an I-485.  Visa fraud........even if she was allowed into the US, USCIS will look at the date of the I-130, her entry dates, etc at AOS.........prepare for scrutiny, imo.

 

I think you possibly have a legal mess on your hands.

Edited March 25, 2019 by missileman

[Boiler 43,402]

B2 is a NON immigrant visa, does not allow someone to enter with the intent to adjust and stay.

[SusieQQQ 11,584]

Yes, the best way to do this is to not intend to adjust on a B2. She can wait out the process at home like she is supposed to...

[M & J 5]

Thank you for confirming my suspicions that we were about to go down the wrong path.  It's definitely not our intention to commit fraud. However, I wrongfully assumed that she could apply to adjust her status while visiting given that is the only way she can lawfully be in the US.  We will submit an i-824 to have her approved petition sent to the embassy in her country and she will complete the process at home. 

[Boiler 43,402]

She can 

 

You said she wants to go home and then 'visit' and adjust.

[aaron2020 11,651]

14 minutes ago, M & J said:

Thank you for confirming my suspicions that we were about to go down the wrong path.  It's definitely not our intention to commit fraud. However, I wrongfully assumed that she could apply to adjust her status while visiting given that is the only way she can lawfully be in the US.  We will submit an i-824 to have her approved petition sent to the embassy in her country and she will complete the process at home. 

Did u indicated that she would AOS in the I-130?

[M & J 5]

42 minutes ago, missileman said:

A person can not enter the US via a B2 with the intent to file an I-485.  Visa fraud........even if she was allowed into the US, USCIS will look at the date of the I-130, her entry dates, etc at AOS.........prepare for scrutiny, imo.

 

I think you possibly have a legal mess on your hands.

Her i-130 was approved on 3-2018. She entered the US in 11-2018 to help with our newborn son.  She is scheduled to leave at the end of April although she can stay until mid-May based on her i-94.  I wrongfully assumed we could adjust her status next time she was in the US based on a question on the i130 without considering the type of visa she uses to enter the country.    At any rate, thank you for responding. 

[Crazy Cat 39,194]

3 minutes ago, M & J said:

Her i-130 was approved on 3-2018. She entered the US in 11-2018 to help with our newborn son.  She is scheduled to leave at the end of April although she can stay until mid-May based on her i-94.  I wrongfully assumed we could adjust her status next time she was in the US based on a question on the i130 without considering the type of visa she uses to enter the country.    At any rate, thank you for responding. 

My understanding is that She could submit the I-485 now since she was allowed into the US without intent.......but she can't leave until she receives advance parole.......4-6 months after submitting the I-131.

Edited March 25, 2019 by missileman

[M & J 5]

5 minutes ago, aaron2020 said:

Did u indicated that she would AOS in the I-130?

Yes, I indicated on the i-130 she would AOS in the US.  Therefore, the I-797 states that she could AOS in the US. 

[aaron2020 11,651]

Just now, M & J said:

Yes, I indicated on the i-130 she would AOS in the US.  Therefore, the I-797 states that she could AOS in the US. 

She can file for AOS in the US. 

 

Overstaying her visa is not a problem.  Even if she was out of status, you can file the I-485 for her since overstay does not matter for an Immediate Relative of a US citizen.  She's being petitioned by a US citizen child, so it's not a problem.  She would be legal in the US. 

 

THE BIG PROBLEM IS LEAVING THE US WITHOUT AP.  Mom can file the I-485 and be legal in the US - even if she overstays.  Leaving the US without AP or a green card are the ONLY WAY to screw up the AOS because it would be deemed abandonment of the AOS for leaving without AP or a green card.

 

Can mom stay in the US for the next 5-7 months to wait for AP before heading back to her home country?

[WeGuyGal 1,052]

13 minutes ago, M & J said:

Her i-130 was approved on 3-2018. She entered the US in 11-2018 to help with our newborn son.  She is scheduled to leave at the end of April although she can stay until mid-May based on her i-94.  I wrongfully assumed we could adjust her status next time she was in the US based on a question on the i130 without considering the type of visa she uses to enter the country.    At any rate, thank you for responding. 

That question is primarily for folks in the US on a fiance/work visa (K1/H1/L1) that have dual intent. B2 visa does not have dual intent, so entering on a B2 visa with intent to adjust status is visa fraud. 

[aaron2020 11,651]

It would only be fraud if mom enters the US on the visitor visa with the intent to immigrate.

 

Perfectly fine for mom to file the I-485 now and wait for AP to leave and be permitted back into the US to continue her AOS.  

 

OP genuinely thought it was legal for her mom to leave and come back on the B2.  Seems like she now understands that is not possible.  There doesn't seem to be an intent to commit fraud.