Question:
My mother is in US on 6 month visitor visa. We are going to apply for
permanent resident status. Is this going to pose a problem when we
apply to extend her stay as a visitor in the US?
Answer:
It may. When you apply for her extension, you would be declaring that she
has no intention to apply for permanent residency. If she later applies
for permanent residency, this can be viewed as fraud. In real life,
though, it usually doesn't cause a problem as long as there are at least
60 days between the extension application and the application for
permanent residency.
We are applying for her permanent residency now, her visa renewal does
not come up until November. So when we apply for extension, we will
say, we have applied for immigration ... will this cause a problem
with renewal.
If you are applying for her permanent residency now, DO NOT try to renew
her visa, and DO NOT try to extend her status (for the difference between
these two terms, please see my FAQ!)
As soon as you file the paperwork for her adjustment of status, she is
automatically in valid status even past November, and trying to extend her
tourist status would only serve to cause a major confusion.
More specifically, as soon as CIS received her form I-485 (send it by
certified mail, return receipt requested), she is considered in status
even if her visitor status expires.
You are actually quite lucky in that, as your mother, she is eligible to
file the I-485 immediately together with the petiton.
I may not be using the right vocabulary. For my mother I am sending
to the INS service center I-130, I-864 to petition. We are not filing
I-485, I guess this form is sent after the initial processing.
So given this situation, when we file I-539 for extension of stay on
visitor visa, will we have a problem?
Why did you choose this process? Any particular reason?
If you don't have a good reason, if you are following the process you
proposed, you are making a mistake, potentially a serious one, although it
probably would only result in a delay of a few years.
The process you are suggesting would be correct only if your mother is
currently outside the USA. She would have to wait outside the USA and then
pick up an immigrant visa at a US consulate once the I-130 is approved. In
the context of your question, filing the I-130 would effectively render
the I-539 almost guaranteed to be denied, so she would actually have to
depart from the USA and again wait outside for the immigrant visa.
Since she is in the US, you instead need to take the I-130, I-864 and
I-485, and file all three of them together at the local CIS office (NOT
the service center). This way, you are able to file the I-485 immediately
and maintain her status without filing an I-539.
And not to the service center, either, but to the local office.
And please note that this will be a *new* I-130 filed together with the
I-485, and you will have to disclose the existence of the old I-130 on it.
Don't worry about the existence of two I-130 petitions. If the USCIS wants
you to withdraw the first one, it will let you know.
