I130 Petition for Parents

[Pr0diji 0]

Hi everyone,

My Mother in Law is here in the USA on a visit visa. Her application forms has been accepted in Thailand for her non immigration process. Can she apply for adjustment of status from here or she has to go back to Thailand and wait for her approval and interview date ? Can she overstay her tourist visa if the adjustment approval does not come before she has to leave the country ? What form can we file for adjustment so she does not have to go back and once her paperwork is approved she can get her interview from here in Florida. Any help would be appreciated. Thank you 

[Chancy 6,241]

19 hours ago, Pr0diji said:

My Mother in Law is here in the USA on a visit visa.

 

If your spouse is a US citizen, then yes, your MIL can apply for adjustment of status and eventually interview for a green card while in the US.  She must stay in the US, at least until she gets her Advance Parole, while her AOS is pending.  If she leaves before getting her AP or GC, she will abandon her AOS process.

 

[Pr0diji 0]

She has one month left before her 6 months stay in the USA expires. If we apply for Aos on Monday and the acceptance letter does not show up after next month which means she would have overstayed can she still be ok with aos if she has applied and her visa expires ?

[payxibka 10,045]

4 minutes ago, Pr0diji said:

She has one month left before her 6 months stay in the USA expires. If we apply for Aos on Monday and the acceptance letter does not show up after next month which means she would have overstayed can she still be ok with aos if she has applied and her visa expires ?

Her priority date will be the date the form is received by the USCIS even if it takes a month or two to get it in the mail 

[Chancy 6,241]

6 hours ago, Pr0diji said:

She has one month left before her 6 months stay in the USA expires.

 

Just to be clear -- your spouse is already a US citizen, right?

 

[Pr0diji 0]

Yes she is. So is it ok to apply on Monday for aos and then wait until they approve it and still be ok for her MIL to stay in the USA without going back next month. Even if her 6 month expires next month ?

[SusieQQQ 11,586]

6 minutes ago, Pr0diji said:

Yes she is. So is it ok to apply on Monday for aos and then wait until they approve it and still be ok for her MIL to stay in the USA without going back next month. Even if her 6 month expires next month ?

She will be in authorized stay once the i485 is accepted. If you apply for it and she leaves before she gets her advance parole document she will be deemed to have abandoned the AOS, and you will lose the fees. You/she has to be sure that she is happy to stay for 6-8 months until she gets AP before she can leave the country. It is not can she stay - it is that she can’t leave.

 

 

Edited June 19, 2021 by SusieQQQ

[Pr0diji 0]

She’s willing to stay but if she stays here and applies Monday and let’s say they respond to her after a month and her Visa has expired can she still be ok living here legally while waiting for her paperwork to be approved even though her visa would be expired next month ?

[SusieQQQ 11,586]

2 minutes ago, Pr0diji said:

She’s willing to stay but if she stays here and applies Monday and let’s say they respond to her after a month and her Visa has expired can she still be ok living here legally while waiting for her paperwork to be approved even though her visa would be expired next month ?

Yes, that is what “authorized stay” means.

[Pr0diji 0]

But what if they don’t accept the document before next month when her visa expires but we apply Monday? As long as we have applied is she still ok to stay while waiting for their acceptance of i485 ?

[Chancy 6,241]

9 minutes ago, Pr0diji said:

can she still be ok living here legally while waiting for her paperwork to be approved even though her visa would be expired next month ?

 

She will have no legal status after her I-94 expires, but her stay will be authorized while her AOS is pending.  As an AOS applicant based on being an immediate relative of a US citizen, her overstay will be overlooked.  File the AOS paperwork asap, so she can get the receipt notice sooner.  Her passport + receipt notice will serve as proof of her authorized stay.

 

Edited June 19, 2021 by Chancy
clarification

[Pr0diji 0]

Will file Monday. Also can she travel within the USA ? 

[SusieQQQ 11,586]

4 minutes ago, Pr0diji said:

But what if they don’t accept the document before next month when her visa expires but we apply Monday? As long as we have applied is she still ok to stay while waiting for their acceptance of i485 ?

As long as it is properly filed (make sure you have filled everything in properly, fees are correct etc) it is considered accepted when received at uscis, regardless of how long it takes them to send you a receipt notice. 
 

https://www.uscis.gov/news/alerts/uscis-lockbox-updates

….These delays will not affect the receipt date which is determined pursuant to 8 C.F.R. 103.2(a)(7). 
 

8 C.F.R. 103.2(a)(7). : i) USCIS will consider a  benefit request received and will record the receipt date as of the actual date of receipt at the location designated for filing such  benefit request whether electronically or in paper format.

[Pr0diji 0]

So as long as they cash the check it means it’s fine ?

[Chancy 6,241]

1 minute ago, Pr0diji said:

can she travel within the USA ? 

 

Yes.  But after her I-94 expires, I suggest she keep a low profile until she gets the receipt notice.

 

1 minute ago, Pr0diji said:

So as long as they cash the check it means it’s fine ?

 

Yes, as far as the initial filing of the AOS paperwork goes.  But without a valid I-94 or the actual receipt notice, in the very slight chance that she encounters ICE, she will have no proof that she is ok to stay.  That's just the risk she has to accept as a consequence of not filing until her I-94 is close to expiring.  Again, keep a low profile until she has the notice in hand.