Adjustment of status from B1/B2

[h1m5elf]

Hi, trying to find information on my situation:
Just became a US citizen and would like to bring my parents in. On USCIS website there are 2 options: to file I130 form from outside US or file I130 and I485 if they in US already. The more I Google it, more getting confused.
-Can they come to US with their current B1/B2 and then file I130 and I485 to change status?
-Should they wait 90 days because of 90 days rule or they don't have to?
Also found that immediate relatives are excluded from 90 days rule:
"Immediate relatives are a U.S. citizen’s parents, spouse, and/or unmarried children under the age of 21. According to the Matter of Battista and the Matter of Cavazos, immediate relatives of United States citizens who wish to apply for a change of status or adjustment of status are exempt from being subjected to the 30/60 day rule. Thus, immediate relatives of U.S. citizens do not encounter the issues of presumed/preconceived fraudulence."
Please advise
Thanks

[immihelp]

1. Yes.
2. Better to wait 90 days.

[newacct]

Note that they will be denied entry on visitor visa if the officer suspects they will file I-485 while they are here. And they cannot lie to the officer.

[conti]

Hello newacct
and immihelp
I am in really need your help to find a solution in my condition

my case is super complex. I came on B visa, and apply Asylum while B status was valid, however, after six months my status got expired and asylum case is still pending, I got the interview for I 485 based on I-140 petition approved (EB3) through my employer

I read the law under section INA 245 ( c)(2) Act, notably, 8 U.S.C. § 1255(c) (2)(2000). an alien “who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed to maintain continuously a lawful status since entry into the United States, other than through no fault of his own or for technical reasons is ineligible for adjustment of status under section 245(a) of the act.

That point was addressed in Matter of L-K, 23 I. & N. Dec. 677, 680 (BIA 2004). Here a Ukrainian citizen entered the U.S as a nonimmigrant visitor and filed an application for asylum with DHS before the expiration of her visa. The application remained pending as her lawful status expired. DHS referred the asylum application to Immigration Court, where it was denied, and then subsequently appealed by the Ukrainian citizen. During the appeal, the Ukrainian citizen was selected for a Diversity Lottery Visa, so she applied for an adjustment of Status. An Immigration Judge granted adjustment, but the BIA reversed.

In its decision, the Board of Immigration Appeals (BIA) considered these provisions that an alien in lawful nonimmigrant status who files for Asylum and then falls out of nonimmigration status may be eligible “for a technical reason” under Section 1255(c)(2)(2000) and eligible to adjust status if an Asylum application is pending. However, that alien is no longer eligible to adjust status if DHS acts on the asylum request by approving or denying the application, referring it to immigration court prior to the time the alien applied for adjustment of status.

The DHS argue with regulation noted 8 C.F.R. § 1245.1 (d) (2)(ii) relates only to technical violations of status due to “inaction of the DHS”. It specifically provides that the applicant will not be considered to have failed to maintain status if a request to maintain status has been made and “the DHS has not yet acted on that request”. Thus, once the DHS has acted upon a pending asylum application, the “technical” reasons for the violation cease to exist, and the applicant may no longer be considered to be out of status for a technical reason.

However, DHS failed to respond adequately to the Board’s repeated requests relating to its own practices in this regards, referring to the footnote /7 addressed particularly, the Board requested information from the DHS at oral argument and in supplemental briefs regarding the current practices in its District Offices and Services Centers relating to the processing of applications for adjustment of status for individuals similarly situated to the respondent (Ukraine lady). We did not receive any concrete information from the DHS in this regard. In addition, we note that the DHS’s suggestion that the respondent “could easily have filed for an extension of her authorized stay to keep her non-immigration status while the asylum application was adjudicated, “borders on disingenuous.
Based on the above scenario, and consider my case:
Q1. Getting interview notice (and next month I have an interview,) does it mean that my eligibility has been verified by MSC and therefore, they send it to the local office for interview?
Q2. I asked my employer's attorney about the eligibility and he said you are fine, also I called another big attorney and he said that the same that it is ok, BUT I am confused, If in case of denial what will be my option?
Q3: Does I stay as my pending asylum application is not yet decided, or USCIS will transfer my case to NTA Court?
Q4: I have 2 EAD C08 and recently got C09, my attorney said no need to renew your asylum C08 EAD which is going to expire in next month, I am afraid as USCIS will not renew if they found another EAD c09 is still valid, in this what shall I do?

[azblk]

Hello newacct
and immihelp
I am in really need your help to find a solution in my condition

my case is super complex. I came on B visa, and apply Asylum while B status was valid, however, after six months my status got expired and asylum case is still pending, I got the interview for I 485 based on I-140 petition approved (EB3) through my employer

I read the law under section INA 245 ( c)(2) Act, notably, 8 U.S.C. § 1255(c) (2)(2000). an alien “who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed to maintain continuously a lawful status since entry into the United States, other than through no fault of his own or for technical reasons is ineligible for adjustment of status under section 245(a) of the act.

That point was addressed in Matter of L-K, 23 I. & N. Dec. 677, 680 (BIA 2004). Here a Ukrainian citizen entered the U.S as a nonimmigrant visitor and filed an application for asylum with DHS before the expiration of her visa. The application remained pending as her lawful status expired. DHS referred the asylum application to Immigration Court, where it was denied, and then subsequently appealed by the Ukrainian citizen. During the appeal, the Ukrainian citizen was selected for a Diversity Lottery Visa, so she applied for an adjustment of Status. An Immigration Judge granted adjustment, but the BIA reversed.

In its decision, the Board of Immigration Appeals (BIA) considered these provisions that an alien in lawful nonimmigrant status who files for Asylum and then falls out of nonimmigration status may be eligible “for a technical reason” under Section 1255(c)(2)(2000) and eligible to adjust status if an Asylum application is pending. However, that alien is no longer eligible to adjust status if DHS acts on the asylum request by approving or denying the application, referring it to immigration court prior to the time the alien applied for adjustment of status.

The DHS argue with regulation noted 8 C.F.R. § 1245.1 (d) (2)(ii) relates only to technical violations of status due to “inaction of the DHS”. It specifically provides that the applicant will not be considered to have failed to maintain status if a request to maintain status has been made and “the DHS has not yet acted on that request”. Thus, once the DHS has acted upon a pending asylum application, the “technical” reasons for the violation cease to exist, and the applicant may no longer be considered to be out of status for a technical reason.

However, DHS failed to respond adequately to the Board’s repeated requests relating to its own practices in this regards, referring to the footnote /7 addressed particularly, the Board requested information from the DHS at oral argument and in supplemental briefs regarding the current practices in its District Offices and Services Centers relating to the processing of applications for adjustment of status for individuals similarly situated to the respondent (Ukraine lady). We did not receive any concrete information from the DHS in this regard. In addition, we note that the DHS’s suggestion that the respondent “could easily have filed for an extension of her authorized stay to keep her non-immigration status while the asylum application was adjudicated, “borders on disingenuous.
Based on the above scenario, and consider my case:
Q1. Getting interview notice (and next month I have an interview,) does it mean that my eligibility has been verified by MSC and therefore, they send it to the local office for interview?
Q2. I asked my employer's attorney about the eligibility and he said you are fine, also I called another big attorney and he said that the same that it is ok, BUT I am confused, If in case of denial what will be my option?
Q3: Does I stay as my pending asylum application is not yet decided, or USCIS will transfer my case to NTA Court?
Q4: I have 2 EAD C08 and recently got C09, my attorney said no need to renew your asylum C08 EAD which is going to expire in next month, I am afraid as USCIS will not renew if they found another EAD c09 is still valid, in this what shall I do?

Please do not hijack someone else's thread. You already asked this question elsewhere. You will get replies there.