Question:
I am getting conflicting statements
on this. Can someone help? My wife
became a US citizen recently and
now wants to petition for her mother
to move to the US as a permanent
resident. Her mother has a 10-year
visa and has previously visited
us for approximately a 6 month stay.
She plans to visit us again next
month at which point my wife will
file the proper forms.
Here's the
confusing part. I called a local
immigration consultant which told
me that my mother in-law must be
prepared to stay in the US for the
entire length of time it takes for
the forms to process, whether it
takes three months or three years.
This sounded odd since all the time
she has visited before her passport
is stamped for a 6-month stay. I
called the immigration department
with this question and was told
that if she were to stay past the
date stamped on her passport/visa,
she would be in the country illegal,
and it will affect her chances of
receiving her residency.
I called the
consultant back, and he told me
the person at immigration who told
me this knows NOTHING about how
the system works. He has been helping
people for twenty years and knows
how it's done. She HAS to stay in
the country. I have consulted with
other people in similar situations
and they tell me the same thing
as the consulted. When they petitioned
for their mother/father they stayed
in the country for X number of years
until they received their documents.
So who's right? Any and all comments
are welcome.
Answer:
She should wait at least 60 days
after entry before she and your
wife file certain forms together
at the INS district office. She
must not appear to have entered
the U.S. with the intent to stay
permanently.
If your mother-in-law
files Form I-131 along with Forms
I-130/I-485, and if the I-131 is
approved and she receives advance
parole, she is free to travel outside
the U.S. and return to the U.S.
using the advance parole document,
as long as the document is valid.
It is issued for a period of a year,
and it may be renewed each year.
She will be "trapped" in the U.S.
*only* as long as it takes for the
I-131 to be approved.
This ranges
from one day to 4 months, depending
on the INS district office. See
http://members.aol.com/MDUdall/instimes.htm.
Maybe the consultant is used to
dealing with people who have violated
status. If your mother-in-law has
violated status for a long enough
period of time, she loses eligibility
to leave the U.S. and return using
advance parole. In fact, advance
parole proably would not be granted.
But if your wife's mom files the
I-485 before her B-2 authorized
stay expires, her stay in the U.S.
is continuously authorized, and
she will never violate status.
There will
be no prohibition on her travel
outside the U.S. using advance parole.
This sounded odd since all the time
It is true that she would violate
her status by overstaying the period
of status authorized on Form I-94.
However, she would not lose eligibility
for permanent resident status. As
an immediate relative, parent of
a U.S. citizen, she and her daughter
may file Forms I-130/I-485 at the
INS district office for her residence
despite her having violated status.
The violation
is forgiven under INA section 245(a)
and (c), and she does not have to
file a supplementary I-485 form
or pay a superfee. There is another
way to do the process, called consular
immigrant visa processing. Using
this method, your mother-in-law
would have to wait *outside* the
U.S. for a period of time. After
your wife would file the first step
(submitting the I-130 by itself
to the INS Service Center), it would
be risky for her mom to enter the
U.S. as a visitor, so she would
have to wait until the process is
finished in perhaps one to one and
a half years. I don't think this
way is better, but I think you should
know that it exists.
