Jack J

My mom just came to the US on a visitor visa and the I-94 allows
her to stay here for 3 months. Due to the fact that it's getting
more and more difficult to get a visitor visa, even for a regular
visitor like my mom, I want to apply for green card for her. I
know that we can file for adjustment of status or consular
processing. I'm trying to decide which route to take. So here are
questions.

1. While she is in the US when we file I-130, can we still ask for
consular processing which means to take the interview and receive
the green card in her home country? Or is adjustment of status (AOS),
which leads to completing the process in USA, the only option?

2. Do we need to make a decision whether to go through adjustment of
status or consular processing right at the time when we file I-130?
Can we, say, choose AOS when we file I-130 and later on, if my mom
decides to go back to home country, we switch to consular processing?

3. Is it true that after we file I-130, the 3 months limit on her
I-94 can be ignored and my mom can stay in the US as long as she
wants, even if we choose to go through consular processing?

4. If we decide to go through AOS, can my mom still travel to her home
country and come back, during either I-130 or I-485 time period? Or
does she have to wait in the US untill her I-485 is in process before
she can leave US with Advance Parole? What is required to travel?
Advance parole? And how long can she travel outside the US?

5. Does concurrent filing apply in this case? Can we file I-130 and
I-485 at the same time? In this case, can she leave the US and come
back before I-130 is approved?

Thanks a lot!
Jack

Sylvia Ottemoeller

"Jack J" wrote in message
news:[email protected]...

    > My mom just came to the US on a visitor visa and the I-94 allows
    > her to stay here for 3 months. Due to the fact that it's getting
    > more and more difficult to get a visitor visa, even for a regular
    > visitor like my mom, I want to apply for green card for her. I
    > know that we can file for adjustment of status or consular
    > processing. I'm trying to decide which route to take. So here are
    > questions.
    > 1. While she is in the US when we file I-130, can we still ask for
    > consular processing which means to take the interview and receive
    > the green card in her home country?

Yes.

Or is adjustment of status (AOS),
    > which leads to completing the process in USA, the only option?

No.

    > 2. Do we need to make a decision whether to go through adjustment of
    > status or consular processing right at the time when we file I-130?

No, theoretically, but yes, practically. For consular processing you would
file the I-130 by itself with the BCIS Service Center. For adjustment, you
would file the I-130 together with the I-485 at a BCIS district office.

If you start out filing an I-130 at the BCIS Service Center, and then decide
to do adjustment, you will file the I-130 (a new one)/I-485 at the BCIS
district office anyway, because the Service Center takes so long to
adjudicate the I-130.

    > Can we, say, choose AOS when we file I-130 and later on, if my mom
    > decides to go back to home country, we switch to consular processing?

Well, you could, but there is no advantage to filing Form I-130 by itself,
asking for adjustment of status, in the case of an immediate relative where
the I-130 and I-485 can be filed concurrently.

    > 3. Is it true that after we file I-130, the 3 months limit on her
    > I-94 can be ignored and my mom can stay in the US as long as she
    > wants, even if we choose to go through consular processing?

No. She can only stay in the U.S. legally if you and she file for
adjustment at the BCIS district office.

    > 4. If we decide to go through AOS, can my mom still travel to her home
    > country and come back, during either I-130 or I-485 time period?

Yes. Note that the I-130 and I-485 are pending simultaneously in this
scenario.

Or
    > does she have to wait in the US untill her I-485 is in process before
    > she can leave US with Advance Parole?

Yes. But the I-485 is "in process" immediately.

What is required to travel?
    > Advance parole?

Yes.

And how long can she travel outside the US?

Up to almost a year.

    > 5. Does concurrent filing apply in this case? Can we file I-130 and
    > I-485 at the same time?

Yes.

In this case, can she leave the US and come
    > back before I-130 is approved?

Yes. The I-130 probably won't be approved until the interview, when it will
be approved at the same time at the I-485.

Jack J

Thank you very much, Sylvia. Just want to clarify something.

"Sylvia Ottemoeller" wrote in message
    > "Jack J" wrote in message
    >
    > > 2. Do we need to make a decision whether to go through adjustment of
    > > status or consular processing right at the time when we file I-130?
    >
    > No, theoretically, but yes, practically. For consular processing you would
    > file the I-130 by itself with the BCIS Service Center. For adjustment, you
    > would file the I-130 together with the I-485 at a BCIS district office.
    >
    > If you start out filing an I-130 at the BCIS Service Center, and then decide
    > to do adjustment, you will file the I-130 (a new one)/I-485 at the BCIS
    > district office anyway, because the Service Center takes so long to
    > adjudicate the I-130.
    >
    > > Can we, say, choose AOS when we file I-130 and later on, if my mom
    > > decides to go back to home country, we switch to consular processing?
    >
    > Well, you could, but there is no advantage to filing Form I-130 by itself,
    > asking for adjustment of status, in the case of an immediate relative where
    > the I-130 and I-485 can be filed concurrently.

Let me change the question. Suppose we'll file I-130 and I-485 concurrently,
and later on, my mom decides to go back to home country and stays there for
a long time (longer then one year). At that time, can we request for consular
processing?

    > > 3. Is it true that after we file I-130, the 3 months limit on her
    > > I-94 can be ignored and my mom can stay in the US as long as she
    > > wants, even if we choose to go through consular processing?
    >
    > No. She can only stay in the U.S. legally if you and she file for
    > adjustment at the BCIS district office.
    >

In other words, if we choose consular processing now, she cannot stay here
longer than 3 months, since she won't file for adjustment of status.
Is that right?

Thanks a gain.
Jack

Haliuna

Very informative, but the question still remains: which takes longer
and more hassle AOS or consular processing?

"Sylvia Ottemoeller" wrote in message news:...
    > "Jack J" wrote in message
    > news:[email protected]...
    >
    > > My mom just came to the US on a visitor visa and the I-94 allows
    > > her to stay here for 3 months. Due to the fact that it's getting
    > > more and more difficult to get a visitor visa, even for a regular
    > > visitor like my mom, I want to apply for green card for her. I
    > > know that we can file for adjustment of status or consular
    > > processing. I'm trying to decide which route to take. So here are
    > > questions.
    > >
    > > 1. While she is in the US when we file I-130, can we still ask for
    > > consular processing which means to take the interview and receive
    > > the green card in her home country?
    >
    > Yes.
    >
    > Or is adjustment of status (AOS),
    > > which leads to completing the process in USA, the only option?
    >
    > No.
    >
    > > 2. Do we need to make a decision whether to go through adjustment of
    > > status or consular processing right at the time when we file I-130?
    >
    > No, theoretically, but yes, practically. For consular processing you would
    > file the I-130 by itself with the BCIS Service Center. For adjustment, you
    > would file the I-130 together with the I-485 at a BCIS district office.
    >
    > If you start out filing an I-130 at the BCIS Service Center, and then decide
    > to do adjustment, you will file the I-130 (a new one)/I-485 at the BCIS
    > district office anyway, because the Service Center takes so long to
    > adjudicate the I-130.
    >
    > > Can we, say, choose AOS when we file I-130 and later on, if my mom
    > > decides to go back to home country, we switch to consular processing?
    >
    > Well, you could, but there is no advantage to filing Form I-130 by itself,
    > asking for adjustment of status, in the case of an immediate relative where
    > the I-130 and I-485 can be filed concurrently.
    >
    > > 3. Is it true that after we file I-130, the 3 months limit on her
    > > I-94 can be ignored and my mom can stay in the US as long as she
    > > wants, even if we choose to go through consular processing?
    >
    > No. She can only stay in the U.S. legally if you and she file for
    > adjustment at the BCIS district office.
    >
    > > 4. If we decide to go through AOS, can my mom still travel to her home
    > > country and come back, during either I-130 or I-485 time period?
    >
    > Yes. Note that the I-130 and I-485 are pending simultaneously in this
    > scenario.
    >
    > Or
    > > does she have to wait in the US untill her I-485 is in process before
    > > she can leave US with Advance Parole?
    >
    > Yes. But the I-485 is "in process" immediately.
    >
    > What is required to travel?
    > > Advance parole?
    >
    > Yes.
    >
    > And how long can she travel outside the US?
    >
    > Up to almost a year.
    >
    > > 5. Does concurrent filing apply in this case? Can we file I-130 and
    > > I-485 at the same time?
    >
    > Yes.
    >
    > In this case, can she leave the US and come
    > > back before I-130 is approved?
    >
    > Yes. The I-130 probably won't be approved until the interview, when it will
    > be approved at the same time at the I-485.

Sylvia Ottemoeller

There is no simple answer to this question. It depends on several
variables, including *which* BCIS Service Center would process the I-130 (if
the choice is consular processing); the processing time at the particular
consular post (if the choice is consular processing); and the usual
processing time for I-485s filed at the BCIS district office which would
handle the I-485 (if the choice is AOS).

"Haliuna" wrote in message
news:[email protected]...

    > Very informative, but the question still remains: which takes longer
    > and more hassle AOS or consular processing?

    > "Sylvia Ottemoeller" wrote in message
news:...

    > > "Jack J" wrote in message
    > > news:[email protected]...
    > >
    > > > My mom just came to the US on a visitor visa and the I-94 allows
    > > > her to stay here for 3 months. Due to the fact that it's getting
    > > > more and more difficult to get a visitor visa, even for a regular
    > > > visitor like my mom, I want to apply for green card for her. I
    > > > know that we can file for adjustment of status or consular
    > > > processing. I'm trying to decide which route to take. So here are
    > > > questions.

[snip]

Sylvia Ottemoeller

"Jack J" wrote in message
news:[email protected]...

    > Thank you very much, Sylvia. Just want to clarify something.
    > "Sylvia Ottemoeller" wrote in message

    > > "Jack J" wrote in message
    > >
    > > > 2. Do we need to make a decision whether to go through adjustment of
    > > > status or consular processing right at the time when we file I-130?
    > >
    > > No, theoretically, but yes, practically. For consular processing you
would
    > > file the I-130 by itself with the BCIS Service Center. For adjustment,
you
    > > would file the I-130 together with the I-485 at a BCIS district office.
    > >
    > > If you start out filing an I-130 at the BCIS Service Center, and then
decide
    > > to do adjustment, you will file the I-130 (a new one)/I-485 at the BCIS
    > > district office anyway, because the Service Center takes so long to
    > > adjudicate the I-130.
    > >
    > > > Can we, say, choose AOS when we file I-130 and later on, if my mom
    > > > decides to go back to home country, we switch to consular processing?
    > >
    > > Well, you could, but there is no advantage to filing Form I-130 by
itself,
    > > asking for adjustment of status, in the case of an immediate relative
where
    > > the I-130 and I-485 can be filed concurrently.

    > Let me change the question. Suppose we'll file I-130 and I-485
concurrently,
    > and later on, my mom decides to go back to home country and stays there
for
    > a long time (longer then one year). At that time, can we request for
consular
    > processing?

Not through that particular I-130. As a practical matter, consular
processing is possible only through an I-130 which is filed by itself at the
appropriate BCIS Service Center.

Theoretically, this could happen: she could re-enter the U.S. before the
expiration of her advance parole, and apply for another advance parole.
That would allow her to leave the U.S. again and stay outside some more.

She could stay outside the U.S. in that manner until her I-485 is approved,
and then she can re-enter the U.S. with proof of that approval. She would
be given deferred inspection, and then she would go to the BCIS district
office and get her stamp in her passport.

If she is not ready to spend a lot of time in the U.S., it may not be the
right time for her to get permanent resident status.

    > > > 3. Is it true that after we file I-130, the 3 months limit on her
    > > > I-94 can be ignored and my mom can stay in the US as long as she
    > > > wants, even if we choose to go through consular processing?
    > >
    > > No. She can only stay in the U.S. legally if you and she file for
    > > adjustment at the BCIS district office.

    > In other words, if we choose consular processing now, she cannot stay here
    > longer than 3 months, since she won't file for adjustment of status.
    > Is that right?

Well, she could stay, but she would violate her status on the 91st day.
Because she is an immediate relative, she could later file Form I-485 even
if she had violated status. It is not the best choice in the world, but
adjustment of status would remain a possibility. She would be trapped in
the U.S., as her departing may jeopardize her ability to re-enter.

Chakri

5. Does concurrent filing apply in this case? Can we file I-130 and
I-485 at the same time? In this case, can she leave the US and come
back before I-130 is approved?

This can pose a problem. I was told by local BCIS office (Portland,
OR) that entering US on a non-immigrant visa while I-130 is under
process would be considered 'fraud'. It doesn't make sense to me since
I would think relative wouldn't have express intention to immigrate
until I-485 is filed by him/her.

Sylvia Ottemoeller

"chakri" wrote in message
news:[email protected]...

    > 5. Does concurrent filing apply in this case?

What case?

Can we file I-130 and
    > I-485 at the same time?

For immediate relatives, the answer is yes.

In this case, can she leave the US and come
    > back before I-130 is approved?

If the person gets advance parole and is not subject to the 3- or 10-year
bar, the answer is yes.

    > This can pose a problem. I was told by local BCIS office (Portland,
    > OR) that entering US on a non-immigrant visa while I-130 is under
    > process would be considered 'fraud'. It doesn't make sense to me since
    > I would think relative wouldn't have express intention to immigrate
    > until I-485 is filed by him/her.

First, it is not necessarily fraud for a person to use a nonimmigrant visa
to enter the U.S. with an I-130 pending. The person may fully intend to
return to his or her home country at the end of the authorized stay.
However, BCIS "could" consider it fraud if the person does not leave.

Second, in the case of concurrently filed I-130/I-485 with advance parole,
the person will not enter the U.S. using a nonimmigrant visa. The person
will enter the U.S. using advance parole.

After filing Form I-485, people generally will never use a nonimmigrant visa
again, except for H-1B and L-1 under certain circumstances.