How do I file I-130 and I-485 for my parents who are on a visitor's visa? 10 Answers as of July 15, 2013

I am a US citizen. My parents have a 10 year visitor visa. I wish to apply for I -130 and I-485 concurrently while they are in USA. If I file these petitions after 90 days after their arrival, will they be denied AOS? Is it safe to file AOS for them? Would you advice consular processing instead?

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Law Offices of Svetlana Boukhny
Law Offices of Svetlana Boukhny | Svetlana Boukhny
They can apply but it is best to wait until they have been in the US for at least 90 days since their last entry so that it does not look like misrepresentation of intent at the time of entry. Please let me know if you have any additional questions or how I can be of further assistance to you in this matter.
Answer Applies to: California
Replied: 7/15/2013
Law Office of Adebola Asekun | Adebola O. Asekun
As a US citizen, your parents are considered immediate relatives of a US citizen and hence a visa is almost always available. So when you file an I-130 petition for your parents you can concurrently file their I-485 adjustment of status [green card] applications. With respect to timing of their I-485 applications, note the general principle that when an alien enters the US ostensibly as a tourist and thereafter files for permanent residence, the DHS may find that the aliens' initial entry as a tourist was fraudulent and hence may form the basis of a denial. There is no hard and fast rule on how to rebut the preconceived immigrant intent, but the further away in terms of the time of entry to the time of filing an adjustment application, the stronger can a case be made for lack of preconceived immigrant intent.
Answer Applies to: New York
Replied: 7/14/2013
Frazier, Soloway & Poorak, P.C.
Frazier, Soloway & Poorak, P.C. | David Nabow Soloway
From your question it appears that you are aware that if the USCIS were to deem a person to have entered the U.S. on a visitor's visa while intending to apply to live permanently in the U.S., that person may be viewed as having committed visa fraud, which can have very serious consequences. It would be wise for you and your parents to engage an immigration attorney to learn all of the relevant information about your parents in order to advise about eligibilities, options and strategies. Some immigration law firms, including mine, offer legal services on a "flat fee" basis so that a client will know the total expense from the very beginning, and a few immigration law firms, including mine, offer an initial consultation free of charge.
Answer Applies to: Georgia
Replied: 7/14/2013
Havens & Lichtenberg PLLC
Havens & Lichtenberg PLLC | Michael Lichtenberg
Adjusting status in the U.S. is faster than consular processing. Although the filing fees are higher, the difference is likely less than the price of 2 airline tickets. So, unless your parents have their own reasons to go back to their country before they might receive their green cards, adjustment of status is, probably, the road to take. Is it safe, you ask. Well Does either of your parents have any criminal history or history of violations of U.S. immigration laws, involvement with a terrorist organizations or totalitarian parties, communicable diseases? Can you show financial ability to support them so they would not become public burden? To be certain about what to expect, you would have to speak with an immigration attorney and give him/her a lot of information about your family and finances. However, if there is a problem that might stand in the way of your parents' adjustment of status, the same problem will bar their consular processing, too. If their applications for adjustment of status get denied, your parents will be asked to go home - but this is exactly what they have to do in order to submit to the consular processing. So, no matter what might happen in adjustment, I see no reasons why a consular processing might be better. Quite the opposite: if you have reason to expect any problems, it is better to face them in the U.S., where an adverse decision of an immigration officer can be appealed - while denial of an immigrant visa by a consul is final and cannot be appealed.
Answer Applies to: New York
Replied: 7/11/2013
Law Office of Eric Fisher | Eric Fisher
If you are 21 years of age or older, you can file for your parents. If they file 90 days after their arrival in the US, it will be presumed they did not enter the US with immigrant intent, but the government could prove otherwise. You should consult an immigration attorney.
Answer Applies to: Colorado
Replied: 7/10/2013
    Preston & Brar, LLC | Jesse Brar
    When your parents applied for the non-immigrant visitor visa, they had to show the U.S. consulate that they have no "immigrant intent." So if the arrive on a visa and you file their AOS application, the USCIS may question whether the misrepresented their intent to get the non-immigrant visa. However, if a person comes on the visitor visa to visit the U.S. but later when they are in the U.S. he/she decides to stay, that is, they form the intent after arrival in the U.S., they are fine because they didn't misrepresent anything to the US govt to get any immigration benefit.
    Answer Applies to: Utah
    Replied: 7/10/2013
    World Esquire Law Firm
    World Esquire Law Firm | Aime Katambwe
    You can file their AOS even after their I-94 expire. You should have them adjust here since they are here and it is a lot easier for everyone if it were done here. Please find competent counsel to do it for them and you won't even feel it.
    Answer Applies to: California
    Replied: 7/10/2013
    Mayo Mallette PLLC
    Mayo Mallette PLLC | Thomas J. Rosser
    Consular processing is the indicated procedural step for them since they entered the country under non-immigrant tourist visas with "no immigrant intent" assumptions.
    Answer Applies to: Mississippi
    Replied: 7/10/2013
    Richard S. Kolomejec, Attorney at Law
    Richard S. Kolomejec, Attorney at Law | Richard S. Kolomejec
    I would file in the US and just wait about 2 to 3 months after their entries before applying.
    Answer Applies to: California
    Replied: 7/10/2013
    Law Offices of Grinberg and Segal
    Law Offices of Grinberg and Segal | Alexander Segal
    Your parents cannot seek adjustment of status in the U.S. if they intended to do so. Entering the United States using a non-immigrant visa with the intent to remain here permanently can lead to a finding they misrepresented themselves or committed fraud at their entry.
    Answer Applies to: New York
    Replied: 7/10/2013
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