to go back or not...

[camsicamsa]

I would like to sponsor my mother (Indian citizen) for a green card. I have been a US citizen since 2000 and can prove financial support to sponsor her.
My mother is currently in the US on a visitor visa and her I-94 is valid until July 2008. She has visited the US 5 times since 2000 and has never been out of status.

This time on her visit I want her to stay back and become a permanent resident. The critical thing is that she lost her husband (my father) about 2 months before she came here, and we think that she is better off staying in the US than living alone in India. This is very important for her health as we do not want her to be alone in India.

On this visit, she has already spent 90 days and I am inclined on beginning the I-130 and I-485 process. My biggest fear is that USCIS can say that she entered with a non-immigrant intention and now she is trying to be an immigrant.

Questions-
Is there a good chance USCIS will approve her AOS? I know the advice of this board is to be safe and apply from country of residence. I want to know if USCIS considers exceptional circumstances and also the fact that she has never been out of status and only this time the situation is different.

If she is denied, can we re-apply for her I-130 when she goes back to India?

Thanks

[PraetorianXI]

For as long as she did not enter with that intention and 90 days have passed and she has a good immigration history, she should be fine.

[peace]

camsicamsa

The recent demise of your dad may make "preconceived immigrant intent" all the more likely. There is no clause of "exceptional circumstances" for AOS. And previous legal stays on B2 are irrelevant.

Please remember AOS is discretionary. Meaning, if the officer "thinks" that some law was broken, he can deny your mom AOS.
So, if your mom gets a tough officer at interview, she COULD have problems. That said, lot of parents do adjust status from B2.

Another option could be DCF. "health and safety exceptions" do exist for DCF processing.
How old is your mother? Is she in good health or does she have any medical problems?

[camsicamsa]

Thanks Praetorian and Peace. When my Mom entered the US this time, the intention was indeed to go back as there is a lot of unfinished business back in India... the idea was that she would recover and be mentally strong in a few months' time. However, we now feel that she is better off with us and she rather get her PR. The problem I think comes down to getting the Immigration Officer on the same page... would you strongly recommend an attorney's help here? Also, are interviews mandatory in such cases?
Finally, if this application is denied, can we still fall back on Plan B and apply for her PR while she is in India?
Thanks again!

[PraetorianXI]

1) No attorney needed.
2) Yes, you can apply from India.

[camsicamsa]

Thanks for the quick response Praetorian!

Just also wanted to make sure if interviews are required in such cases?

kind regards...

[peace]

Interview will be required for AOS.

I still advise you to explore the DCF route. It is very fast (Only 3 months to get immigrant visa in India).
*How old is your mother?

[camsicamsa]

Peace, sorry I missed answering your question. My mother is 61 years old. To do DCF I will have to pretty much resign from my job and go back with her to India, that is why I was hoping to get it done from here. Tough situation I am in...

thanks again

[peace]

If you have a relative in India who can take her through the 3 month process,
all you have to do is visit India for a few days to file an I-130.

The embassy allows for exemption for 3 month residency requirement in
exceptional cases.