Timing: When should I petition my mom for a Green Card?

[Casebycase]

I'll naturalize next week. Since I'll become a US citizen in the Oath Ceremony, I'm thinking of petitioning my mom right away for a Green Card. I managed my own immigration cases (I-130, I-485, I-765, I-863, I-751, and I-400). So I think I'm familiar with the process, the forms, the overwhelming evidence, etc.

My only question is: My mom will enter the US on a tourist (B2) visa, and I'm planning on petitioning the next week after she enters. Is this a good idea? or I should wait a month after she enters?
I'm asking this since she initially got her B2 visa like 4 years ago and she came several times (like 6 times) to visit and leave within 3 months (she never violated the terms of the visa), but this time she'll be petitioned and I don't want immigration to say that she lied at the port of entry about "visiting." As a matter of fact, to protect her from this I haven't told her about my plans of petitioning her so she actually thinks that she's coming to be with me and my husband for Christmas. Then, I plan to surprise her by showing her my Naturalization certificate and the forms for petitioning her. I already have her birth certificate notarized (and apostille), her marriage certificate notarized (and apostille), my birth certificate notarized (and apostille)... etc... I'm al translating then with a certified translator, etc.

So, should I petition her as soon as she arrives (the very next day lol) or should I wait some time after she enters the US?

My plan is to file concurrently I-130 (Online), and then mail I-130 receipt + I-485 + a bunch of other forms, medical examination, etc etc by FedEx certified mail...

Please advise

[parks]

Fill ALL the forms. Double check. Then WAIT.

File after she has entered in the US, and has been here for 90 days. This will eliminate any presumption that she entered US with false intent. You can fiile I130 and I485 concurrently.
.
Use the intervening time to get your US passport; report tp social security office that you are a citizen (not an urgent issue, but worth doing). Any other tasks.

[Casebycase]

Thank you! This helps a lot. Do you know what could happen if I petition her before the 90 days and she's charged with "false intent"? Like this could make the whole process more difficult, right?

The last question, maybe you can help me with this too. She will receive her 10-year green card sometime next year. As a permanent resident, she will submit an I-130 form to petition my brother(biological unmarried adult son. 30 years old). He will be classified as Family Preference 2B (F2B), so he'll have to wait for a date with the Visa Bulletin in order to submit form I-485 to adjust his status. I analyzed the DHS national reports on the date progression of F2B preference throughout the last 15 years. With this data, I have a better idea of how long it will take for my brother to become eligible to submit I-485.

When the moment comes, he'll meet all the requirements to adjust his status:

- lawful admission to the U.S. with a visa
- physically present in the United States,
- he doesn't have a removal order
- he has a clean background (not criminal charges in the U.S. or any other country - ever)
- He has Not been ever arrested or in prison, not a terrorist, etc, etc...
- Not being a public charge both in terms of health and financially

My only concern is my brother's "Unlawful Presence" to meet all the admissibility requirements for the Adjustment of Status.

My mom is my "Immediate Relative" since I'm becoming a U.S. citizen. Immediate Relatives are exempted from failing to continuously maintain lawful status since lawful entry into the U.S. So, she'll be fine since she has always entered the US and has left before the "date of departure" on i94(Arrival/Departure Record).

But when my mom gets her green card and petitions my brother, he will be classified as "Family Preference" and people in this category are NOT exempted from unlawful presence in the U.S. He entered legally with a 1-year visa in 2017. His visa expired in 2018. So basically he has overstayed his visa for 2 years.

OPTION # 1: I thought that after my mom gets her green card, she may request a Waiver for Unlawful Presence (for Overstaying the Visa), but I have no idea if this waiver is available, or if it should be sent when my brother files I-485; or if he should wait until an immigration officer determines that he should file a waiver.

OPTION # 2: I thought of filing an extra I-130 myself (as a U.S. citizen) petitioning my brother. But this would not classify him as an "Immediate Relative." Instead, he would be classified even lower in F4 preference (which takes like 7 to 10 years to process). However, not sure if having this extra I-130 form filed... while my mom (a permanent resident) has petitioned him too might help at all.

How would she file the waiver? What are the chances of being successful with this waiver? I just want to be sure before he files I-485 since finding him inadmissible could result in removal proceedings.

Please advise :-)

[newacct]

My only concern is my brother's "Unlawful Presence" to meet all the admissibility requirements for the Adjustment of Status.

My mom is my "Immediate Relative" since I'm becoming a U.S. citizen. Immediate Relatives are exempted from failing to continuously maintain lawful status since lawful entry into the U.S. So, she'll be fine since she has always entered the US and has left before the "date of departure" on i94(Arrival/Departure Record).

But when my mom gets her green card and petitions my brother, he will be classified as "Family Preference" and people in this category are NOT exempted from unlawful presence in the U.S. He entered legally with a 1-year visa in 2017. His visa expired in 2018. So basically he has overstayed his visa for 2 years.

OPTION # 1: I thought that after my mom gets her green card, she may request a Waiver for Unlawful Presence (for Overstaying the Visa), but I have no idea if this waiver is available, or if it should be sent when my brother files I-485; or if he should wait until an immigration officer determines that he should file a waiver.

OPTION # 2: I thought of filing an extra I-130 myself (as a U.S. citizen) petitioning my brother. But this would not classify him as an "Immediate Relative." Instead, he would be classified even lower in F4 preference (which takes like 7 to 10 years to process). However, not sure if having this extra I-130 form filed... while my mom (a permanent resident) has petitioned him too might help at all.

How would she file the waiver? What are the chances of being successful with this waiver? I just want to be sure before he files I-485 since finding him inadmissible could result in removal proceedings.

Please advise :-)

Do you mean your brother's "status" expired in 2008 (the "visa" is for entry only and its expiration date doesn't matter for one's stay in the US)? Since he is not in the Immediate Relative category (no matter if petitioned by you or your mother), he is not eligible for Adjustment of Status if he is not in status. This is not a "ban" that can be "waived" -- it is simply an ineligibility from Adjustment of Status. (In fact, he has no ban right now, since he has not left the US, no matter how much unlawful presence he has accrued.)

Since he is ineligible for Adjustment of Status, he would have to do Consular Processing abroad if he wants to immigrate on either your or your mother's petition. Doing Consular Processing requires leaving the US, and leaving the US will trigger a ban if he has accrued more than 180 days of unlawful presence. (Specifically, accruing 180 days of unlawful presence and then leaving the US triggers a 3-year ban; accruing 1 year of unlawful presence and then leaving the US triggers a 10-year ban.) You have not specified what visa he entered on or what it said on his I-94, so it's hard to say if he has accrued unlawful presence and how much. Generally, he would start accruing unlawful presence when the I-94 expires, but if his I-94 says D/S, then he does not automatically start accruing unlawful presence. If he would trigger a ban upon leaving, he would need to get a waiver or wait out the ban. It is possible for him to get an immigrant waiver for this ban if he can show that your mother (his parent who is a permanent resident) would suffer "extreme hardship" if he can't be in the US. To apply for a waiver when doing Consular Processing, if he's abroad, he would file I-601 while waiting abroad; but if he is still in the US at the time, he can file I-601A for a provisional waiver and get the result before he decides to leave the US.

Both you and your mother can petition him; they do not conflict. Most likely a visa number will become available for your mother's petition faster than your petition, but if you don't mind paying the extra fee, it doesn't hurt to to have both just to be safe. If your brother gets married before your mother becomes a citizen, then your mother's petition for him will be void, but yours will still be valid.

[Casebycase]

Do you mean your brother's "status" expired in 2008 (the "visa" is for entry only and its expiration date doesn't matter for one's stay in the US)? Since he is not in the Immediate Relative category (no matter if petitioned by you or your mother), he is not eligible for Adjustment of Status if he is not in status. This is not a "ban" that can be "waived" -- it is simply an ineligibility from Adjustment of Status. (In fact, he has no ban right now, since he has not left the US, no matter how much unlawful presence he has accrued.)

Since he is ineligible for Adjustment of Status, he would have to do Consular Processing abroad if he wants to immigrate on either your or your mother's petition. Doing Consular Processing requires leaving the US, and leaving the US will trigger a ban if he has accrued more than 180 days of unlawful presence. (Specifically, accruing 180 days of unlawful presence and then leaving the US triggers a 3-year ban; accruing 1 year of unlawful presence and then leaving the US triggers a 10-year ban.) You have not specified what visa he entered on or what it said on his I-94, so it's hard to say if he has accrued unlawful presence and how much. Generally, he would start accruing unlawful presence when the I-94 expires, but if his I-94 says D/S, then he does not automatically start accruing unlawful presence. If he would trigger a ban upon leaving, he would need to get a waiver or wait out the ban. It is possible for him to get an immigrant waiver for this ban if he can show that your mother (his parent who is a permanent resident) would suffer "extreme hardship" if he can't be in the US. To apply for a waiver when doing Consular Processing, if he's abroad, he would file I-601 while waiting abroad; but if he is still in the US at the time, he can file I-601A for a provisional waiver and get the result before he decides to leave the US.

Both you and your mother can petition him; they do not conflict. Most likely a visa number will become available for your mother's petition faster than your petition, but if you don't mind paying the extra fee, it doesn't hurt to have both just to be safe. If your brother gets married before your mother becomes a citizen, then your mother's petition for him will be void, but yours will still be valid.

Thanks so much for your detailed response. It helps me a lot while we make all these decisions. So far, my mom will come with a tourist visa and due to the 90-day rule, I'll wait 90 days to concurrently file her forms.

Regarding my brother: his Visa is a non-immigrant I-visa for Media. His visa was issued in 2017. He entered the U.S. to do work for a magazine and his i94 shows D/S = Duration of Status, so he's in a gray area where we don't know when he was supposed to leave the U.S. Some people say that he was supposed to leave when he finished his job for the magazine. Other people say that that should be decided by an immigration judge. Some other people say that he could show proof of continuity of his status by showing that he has continued to do work related to the visa... so we don't really know. D/S status is kinda ambiguous.

But in essence. The I-visa was issued in 2017. He entered the US and got D/S status and he's been here for 3 years. Most likely, if everything goes as planned; he'll be covering my mom's expenses when she gets her green card, so definitely we could prove that his absence would result in extreme hardship for my mom. I'll try to become more familiar with this I-601A provisional waiver since I want him to safely depart the US for the consular processing when the time comes... not getting barred for 10 years. And actually, he could marry his girlfriend (US citizen). They've been together for almost 2 years... but he doesn't want to make a rushed decision like marriage (you know). That would totally fix his issue since he would be classified as an "immediate relative" and would get the overstay forgiven.

[newacct]

Thanks so much for your detailed response. It helps me a lot while we make all these decisions. So far, my mom will come with a tourist visa and due to the 90-day rule, I'll wait 90 days to concurrently file her forms.

Regarding my brother: his Visa is a non-immigrant I-visa for Media. His visa was issued in 2017. He entered the U.S. to do work for a magazine and his i94 shows D/S = Duration of Status, so he's in a gray area where we don't know when he was supposed to leave the U.S. Some people say that he was supposed to leave when he finished his job for the magazine. Other people say that that should be decided by an immigration judge. Some other people say that he could show proof of continuity of his status by showing that he has continued to do work related to the visa... so we don't really know. D/S status is kinda ambiguous.

But in essence. The I-visa was issued in 2017. He entered the US and got D/S status and he's been here for 3 years. Most likely, if everything goes as planned; he'll be covering my mom's expenses when she gets her green card, so definitely we could prove that his absence would result in extreme hardship for my mom. I'll try to become more familiar with this I-601A provisional waiver since I want him to safely depart the US for the consular processing when the time comes... not getting barred for 10 years. And actually, he could marry his girlfriend (US citizen). They've been together for almost 2 years... but he doesn't want to make a rushed decision like marriage (you know). That would totally fix his issue since he would be classified as an "immediate relative" and would get the overstay forgiven.

Okay, so there are two different things to keep straight: out of status and unlawful presence. The regulations for I status say that he remains in status for as long as he is working for the same employer (named on the I-94) in the same information medium. If he changes employer or changes information medium, he needs to file I-539 in order to stay in status, or otherwise he goes out of status. (Also I am not sure how he can "continue to do work" as he doesn't have any documents showing work authorization other than for the employer on his I-94.) If he goes out of status, he is deportable, but he is not accruing "unlawful presence" for the purposes of the ban since he has D/S on his I-94. The only ways he could start accruing unlawful presence would be if he applies to USCIS for some benefit and is denied with a determination that he is out of status, or he is given a final order by an immigration judge in immigration court (e.g in deportation proceedings); if neither of these things have happened, he is not currently accruing unlawful presence.

So if things continue like this, he doesn't apply to USCIS for anything, he doesn't get deported, and the rules on unlawful presence don't change, then theoretically, if he waits in the US until a visa number is available, and then leaves the US to do the interview at the consulate abroad, he wouldn't need a waiver because he won't have a ban. Keep in mind that this would be many years down the road -- the wait in F2B is 5+ years after your mother gets her green card (assuming he wasn't born in Mexico or the Philippines in which case it would be much longer); in F4 it is 14+ years (assuming he was not born in India, Mexico, or the Philippines). That's a long time he would have to stay illegally in the US, constantly being afraid of deportation and not being able to work legally.

If he gets married to a US citizen in the meantime then he could just do Adjustment of Status inside the US and it would be much simpler.

[manjusiG]

Hello newaccount & Casebycase
I am a USC an am in a similar position as Casebycase , where I am planning in sponsoring my mother to the US . She has a visitor visa for the next 5 yrs. I will be the main sponsor for her financially. I do understand the 90 days rule which is fine. However my question is regarding the I-864 form, on the USCIS.gov fee schedule pdf I see that there are sub forms for I-86?, attached image here, which form should I be filling for my mother ? Also I understand that there is a new form I-944 to be filled by the sponsor? any insight on that ? any and all information is much appreciated. Lastly, Could you kindly confirm that the below forms as well just as a clarification,

I-130
I-131
I-485
I-944
I-864
I-765
I-693


Thank you.

[newacct]

Hello newaccount & Casebycase
I am a USC an am in a similar position as Casebycase , where I am planning in sponsoring my mother to the US . She has a visitor visa for the next 5 yrs. I will be the main sponsor for her financially. I do understand the 90 days rule which is fine. However my question is regarding the I-864 form, on the USCIS.gov fee schedule pdf I see that there are sub forms for I-86?, attached image here, which form should I be filling for my mother ? Also I understand that there is a new form I-944 to be filled by the sponsor? any insight on that ? any and all information is much appreciated. Lastly, Could you kindly confirm that the below forms as well just as a clarification,

I-130
I-131
I-485
I-944
I-864
I-765
I-693


Thank you.

They are not really "sub-forms". So I-864P is just a table for how much income is needed to reach the 125% poverty level for a given household size. I-864EZ is just a simpler version of the I-864, which you can use if certain conditions are met; but you can always just use I-864 even if you qualify to use I-864EZ. I-864A is for "household members" of the sponsor to fill out if the sponsor needs to include income from household members to reach the required level.

Your forms look okay

[manjusiG]

newacct Thank you very much, Appreciate the response.

[Casebycase]

Okay, so there are two different things to keep straight: out of status and unlawful presence. The regulations for I status say that he remains in status for as long as he is working for the same employer (named on the I-94) in the same information medium. If he changes employer or changes information medium, he needs to file I-539 in order to stay in status, or otherwise he goes out of status. (Also I am not sure how he can "continue to do work" as he doesn't have any documents showing work authorization other than for the employer on his I-94.) If he goes out of status, he is deportable, but he is not accruing "unlawful presence" for the purposes of the ban since he has D/S on his I-94. The only ways he could start accruing unlawful presence would be if he applies to USCIS for some benefit and is denied with a determination that he is out of status, or he is given a final order by an immigration judge in immigration court (e.g in deportation proceedings); if neither of these things have happened, he is not currently accruing unlawful presence.

So if things continue like this, he doesn't apply to USCIS for anything, he doesn't get deported, and the rules on unlawful presence don't change, then theoretically, if he waits in the US until a visa number is available, and then leaves the US to do the interview at the consulate abroad, he wouldn't need a waiver because he won't have a ban. Keep in mind that this would be many years down the road -- the wait in F2B is 5+ years after your mother gets her green card (assuming he wasn't born in Mexico or the Philippines in which case it would be much longer); in F4 it is 14+ years (assuming he was not born in India, Mexico, or the Philippines). That's a long time he would have to stay illegally in the US, constantly being afraid of deportation and not being able to work legally.

If he gets married to a US citizen in the meantime then he could just do Adjustment of Status inside the US and it would be much simpler.

Thank you for your response. You got a very good point here about the D/S stamped on the I-94. So, in that case, he wouldn't be inadmissible. Great news. I will double-check though. Now, when my mother files I-130 for my brother, does this trigger any officer looking into his "status" in the US, or that only happens after the I-130 has been approved and he files I-485?

[Casebycase]

Hello newaccount & Casebycase
I am a USC an am in a similar position as Casebycase , where I am planning in sponsoring my mother to the US . She has a visitor visa for the next 5 yrs. I will be the main sponsor for her financially. I do understand the 90 days rule which is fine. However my question is regarding the I-864 form, on the USCIS.gov fee schedule pdf I see that there are sub forms for I-86?, attached image here, which form should I be filling for my mother ? Also I understand that there is a new form I-944 to be filled by the sponsor? any insight on that ? any and all information is much appreciated. Lastly, Could you kindly confirm that the below forms as well just as a clarification,

I-130
I-131
I-485
I-944
I-864
I-765
I-693


Thank you.

Yes, I'm pretty much filing the same forms for my mom. The only form I'm not filing is I-131 because she won't need to travel outside of the US until she receives her green card. I will file I-130 Online since I have a USCIS account. Then, I will print out the I-130 receipt to get her assigned Alien # to include that # in all the other forms. Soon after USCIS accepts I-130 form, I'll mail ALL the other forms to Adjust her Status in a certified package through FedEx (I use FedEx or UPS because I had a very bad experience with USPS. A few years ago, USPS lost all the packet I sent to USCIS, and even though it was certified, they didn't respond to losing the documents... I had to work double to re-send and pray that my SSN and personal information wouldn't get in the hands of fraudulent people).

Anyway, so I investigated the processing time my Local USCIS Field Office takes to complete I-485, and on average it takes 6 months for us. We're lucky to live in a city where not many cases are adjudicated. I know other Field Offices take up to 18 months because they have high populations of immigrants. Also, we're Colombians, so thankfully we don't have to deal with the delays that citizens from other countries (China, India, Philippines, etc) encounter. Additionally, my mom's case is very simple: she's eligible to receive these benefits + she has a clean criminal background + she had her own business in Colombia so we can even prove self-sufficiency, and I've ensured to make enough money to show our income qualifies above the poverty requirement for affidavit purposes. Thank God she has good health (thinking of getting her Health insurance when she comes too). Still, I will ensure to submit Overwhelming evidence to prove her eligibility in all the areas required to grant adjustment of status; just to be safe and not encounter "Request for Evidence" notices down the road (which always delays the process 3-4 months). Finally, we'll renew our lease in a couple of months and we're not planning on moving to another county/city (since this requires changing the address, which changes the jurisdiction of the case and also delays the process between 2 and 5 months). A lot of planning lol... but better safe. Good luck with your petition :-)

[parks]

Thank you! This helps a lot. Do you know what could happen if I petition her before the 90 days and she's charged with "false intent"? Like this could make the whole process more difficult, right?

[...]
OPTION # 2: I thought of filing an extra I-130 myself (as a U.S. citizen) petitioning my brother. But this would not classify him as an "Immediate Relative." Instead, he would be classified even lower in F4 preference (which takes like 7 to 10 years to process). However, not sure if having this extra I-130 form filed... while my mom (a permanent resident) has petitioned him too might help at all.

F4 wait time is MUCH. MUCH LONGER!

Right now, the wait time is: 22 years for Mexico; 18 years for Philippines; 15 years for India, and 14 years for the rest of the world. That means people who filed that long ago are about to get the visa (plus additional ~6 months in final processing, PLUS current covid issues).

Anyone who files now can expect 20+ years wait in F4 category. The wait time has increased from a <7 years 20 years back to the 14-22 years wait now.

This is also the category that is most likely to be nixed in any immigration changes in future...

So, don't even think of this category as the main option.

Instead, think of your F2B as the only realistic option. Consult an attorney, spend a few thousand dollars, and get them to get a waiver, anyhow. That is their job, and in most cases, they can create all the gobbledygook / paperwork, and squeeze it through. This is the kind of case, when time comes, you fork out 5K to 10K, to an attorney like **********, or some other top-top-top lawyer.

You can file F4 category I130, as INSURANCE / backup (in case,, God forbid, your mother were to pass away in next 5 years). Depending upon mother's health and age, this insurance, for the cost of an extra $130 fee, may or may not be necessary.

[newacct]

Thank you for your response. You got a very good point here about the D/S stamped on the I-94. So, in that case, he wouldn't be inadmissible. Great news. I will double-check though. Now, when my mother files I-130 for my brother, does this trigger any officer looking into his "status" in the US, or that only happens after the I-130 has been approved and he files I-485?

As I said before, he is not eligible for I-485 (Adjustment of Status). When a visa number becomes available (about 5 years after your mother files the I-130), NVC will reach out to you guys about the Consular Processing, and eventually he will have an appointment at the consulate abroad for the immigrant visa interview. The consulate will hopefully issue him an immigrant visa since he doesn't have a ban.

I am not sure whether they will look into his status based on the I-130 filing.

[Casebycase]

Thank you so much guys for the insight. God bless you all :-)

[PMaity]

My mother came in B2 visa after I filed for I-130. Is there a way she can file for I-485 after 90 days from within USA instead of Consular processing option ? What is the cons of doing so ? It is not exactly concurrent filing but semi-concurrent. Please advise if anyone has been in similar boat