AOS for parents on B-2 - ok or not?

[verbose]

I am confused if it’s ok to file for AOS for parents when they last entered US (about 120 days ago) on B2 visa, and have not used any public benefits.

Any experiences where folks have received green card approval in similar scenario?

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Also, want to add that they have had B2 since 2005 and have traveled several times to US and always exited before authorised stay period.

I got my citizenship in 2018 and this is the first time they are visiting after that.

[catparade]

B-2 visitors generally aren't allowed to file for Adjustment of Status, but this is usually forgiven for immediate relatives of US Citizens. Google "Preconceived intent and immediate relatives of United States citizens" for more information.

This ain't legal advice.

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Thanks for sharing the vital piece of guidance on this. Much appreciated.

[newacct]

There's no restriction on Adjustment of Status from B2. There is a concern on whether they may have misrepresented their purpose to the immigration officer when they entered the US. This is true for all nonimmigrant visas that are subject to presumption of immigrant intent, not just B2.

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Based on catparade 's suggestion, I found these couple resources that reassured me that it should be ok.



A quote from the above:

Preconceived intent and immediate relatives of United States citizens


Under U.S. immigration law, “immediate relatives” are spouses of U.S. citizens, children (under 21 years of age and unmarried) of U.S. citizens, and parents of U.S. citizens 21 years of age or older. Based on legal precedent in cases decided by the Board of Immigration Appeals (Matter of Cavazos– decided in 1980, Matter of Ibrahim – decided in 1981, and Matter of Battista – decided in 1987), in cases involving the immediate relative of a U.S. citizen, preconceived intent cannot be the basis for a denial if it is the only adverse factor.

A quote from the above:

Immediate Relatives of US Citizens


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.

[newacct]

[QUOTE=verbose;n736837]Based on catparade 's suggestion, I found these couple resources that reassured me that it should be ok.



I believe the legal analysis of these are wrong. Those cases from the 1980s never said that AOS cannot be denied for Immediate Relatives based on the misrepresentation ban; they only said they should not be denied on the basis of discretion. Prior to 1986, the law was such that misrepresentation on entry did not cause a ban; only misrepresentation when getting a visa caused a ban. So denial of AOS for misrepresentation on entry was not possible before then, and they tried to deny based on discretion. But after 1986, as is currently, misrepresentation in both entry and getting a visa cause a ban, and there is no case that says AOS cannot be denied on that basis for Immediate Relatives.

[verbose]

Duly noted, thanks newacct for sharing the subtleties involved. To state the obvious, I guess one can only try and outcomes will be determined on a case-by-case basis...