Hi,

My mother is here on a B-2 tourist visa and her I-94 (6 months) expires on Jan 25 2009.
I have received my letter for oath for Feb 12 2009. So I will be a US citizen on Feb 12 2009.

Now on Feb 13,2009, if I apply for Green card for my mother (130 and 485), will she be eligible for 485 ? Since she will have overstayed her I-94 by about 25 days by the time USCIS receives the 130-485 application.

Thank you very much,
Sa.

The process of applying for immigrant visa for your mother takes about 12-18 months depending on what country you're from.

It will be best for her to return to her home country and wait for immigrant visa there. Meanwhile she can come visit you on B-1/B-2, as long as she does not overstay.

If she overstays for more than 6 months, it will trigger a 3 years bar or 12 months for a 10 years bar, which at that point you will need an immigration attorney.

The process of applying for immigrant visa for your mother takes about 12-18 months depending on what country you're from.

It will be best for her to return to her home country and wait for immigrant visa there. Meanwhile she can come visit you on B-1/B-2, as long as she does not overstay.

If she overstays for more than 6 months, it will trigger a 3 years bar or 12 months for a 10 years bar, which at that point you will need an immigration attorney.


Thank you very much for your answer lawanwadee.
However , now I am confused some more and have more questions:

I understand that the process of getting the final green card will take 12-18 months.
However my main concern is if she will eligible for Adjustment of Status (485) since , on the day we file 130-485, she will have overstayed her original I-94 by about 20-25 days. Since this is less than 180 days (which triggers the 3 year ban), do you know if USCIS will forgive or just assess monetary penalty during the interview and keep her 485 application valid ?
And I am assuming that once the 130-485 is filed, she will be eligible to stay in the US legally till the green card is finally adjudicated (approved or denied)..

I was actually trying to read section 245 of the INA code... (but does not make any sense to me as I am not an attorney)
ProPublish Reference (http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=7b2ad4e82f00315ac8e70cab6366e 0da) see section 245.


If legally possible, I am trying to avoid her going back to India as she does not have any immediate family there any longer. My sister and father immigrated to Australia 2 months back and so no family in India any more.

Thanks so much again for your response.

Sa:

What did you end up doing, can you please share your experience.

-internetuser

If your mother overstays her B2 I-94, and you file the I-130/I-485 as you note, the USCIS can approve the petition without any monetary penalty under INA section 245(a). Please note that the officer at the interview may rightly question your mother about her intent on entry with the B visa. She should not make any misrepresentation. I would check with an experienced or board certified attorney. Good luck!

And also, the 3 year bar under section 212(a)(9)(C) is only triggered after leaving the U.S. and applying for subsequent re-entry.