Is I-130 enough to ensure legal status of an applicant currently in USA

[Anony mouse]

Hi,

My father is in USA on B2 visa which expired April 2017, after he entered. His I-94 stamp is valid thru mid Oct, 2017. His brother filed an I-130 GC application for my father in 2014. We have an acknowledgement of receipt (I-797) of his application but no further communication from USCIS.

I am expecting to become a citizen sometime this year, hopefully, so I can initiate his green card application as my parent for faster processing. If my citizenship is granted beyond Oct 2017, when his I-94 stamp expires, what are some ways to ensure his status in the country remains legal?

*** 1. Does my father remain legal because he has a I-130 in place? ***
2. If not, what form(s) can we submit to keep his legal status beyond his I-94 expiration until I become citizen?

Thanks,

[Awan96]

Hi,

My father is in USA on B2 visa which expired April 2017, after he entered. His I-94 stamp is valid thru mid Oct, 2017. His brother filed an I-130 GC application for my father in 2014. We have an acknowledgement of receipt (I-797) of his application but no further communication from USCIS.

I am expecting to become a citizen sometime this year, hopefully, so I can initiate his green card application as my parent for faster processing. If my citizenship is granted beyond Oct 2017, when his I-94 stamp expires, what are some ways to ensure his status in the country remains legal?

*** 1. Does my father remain legal because he has a I-130 in place? ***
2. If not, what form(s) can we submit to keep his legal status beyond his I-94 expiration until I become citizen?

Thanks,

No just filing I-130 is not enough to remain legal in USA. Your father should apply extension using (Form I-539, Application to Extend/Change Nonimmigrant Status) to extend his stay ASAP to so he can protect his legal status in USA.

USCIS normally grants 6 months extension of visit visa so hopefully during that time you can file another I-130 and I-485 for him after you became US citizen.

[Anony mouse]

No just filing I-130 is not enough to remain legal in USA. Your father should apply extension using (Form I-539, Application to Extend/Change Nonimmigrant Status) to extend his stay ASAP to so he can protect his legal status in USA.

USCIS normally grants 6 months extension of visit visa so hopefully during that time you can file another I-130 and I-485 for him after you became US citizen.

Thank you much! His B2 visa expired in April, 2017, but I94 stamp is valid thru October, 2017. Is he still eligible to apply for I-539? If not, is there another form we can use to extend his legal status?

TIA

[inadmissible]

He should file the extension application in early October before his status expires. You should file the alien relative petition, and he should concurrently file his application for adjustment of status, as soon as you attend your oath ceremony. That way, the time he spends deportable, if any, is minimized

[newacct]

Your father should apply extension using (Form I-539, Application to Extend/Change Nonimmigrant Status) to extend his stay ASAP to so he can protect his legal status in USA.

I disagree with this. To apply for Extension of Status for B2, his father must attach a written statement explaining why their stay will be temporary and what arrangements have been made to leave the US. Any statement his father writes for this will be a lie, because his father does not intend to leave and he does not intend for his stay to be temporary. Lying to immigration is one of the worst things you can do.

Instead, if his father just doesn't apply for Extension of Status and remains here until he (the son) becomes a citizen, his father can then immediately do Adjustment of Status. No lying involved.

[inadmissible]

Can't dad leave that section blank and file it, son would naturalize by the time the RFE/NOID arrives

[inadmissible]

Nevermind, that doesn't count as properly filed

[Anony mouse]

Instead, if his father just doesn't apply for Extension of Status and remains here until he (the son) becomes a citizen, his father can then immediately do Adjustment of Status. No lying involved.

Thank you both for your input.
1. If no extension of status is filed then my father essentially runs out of his legal status. When I apply for his GC, what immigration status would I report for him? Would that have implications for his GC approval?

2. I read that leaving (even voluntarily) after 6 months of "illegal" stay can bar the person from re-entering for 3 years. But what if the person leaves voluntarily say at 5 months and 20 days? Are there any consequences?

Thanks!

[inadmissible]

He would put "tourist (out of status)" on his I-485

[scientist2016]

Thank you both for your input.
1. If no extension of status is filed then my father essentially runs out of his legal status. When I apply for his GC, what immigration status would I report for him? Would that have implications for his GC approval?

2. I read that leaving (even voluntarily) after 6 months of "illegal" stay can bar the person from re-entering for 3 years. But what if the person leaves voluntarily say at 5 months and 20 days? Are there any consequences?

Thanks!

1. Since he falls under immediate family of a US citizen, and has been inspected and admitted (while entering on his visitors visa), he can file for AOS (I485). The fact that he was out of status at the time of filing does not matter.