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B-2 Tourist Visa can i file AOS?

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  • B-2 Tourist Visa can i file AOS?

    Hi All,

    Sorry if this question has been asked numerous times but wanted confirmation before proceeding. My wife recently passed her citizenship test and awaiting Oath Ceremony. She will file for her mom I-130 once she receives her naturalization certificate.

    Her mom has a B-2 Visa and expires 8/20/019. She has visited the states 2 times already in 2016 and 2017 with length of stay less than 6 months. She plans on coming over here to visit and take care of our kids in April. Can we apply to adjust her status so she gets a green card or it's not advise as her B-2 was intended for tourist not permanent resident (heard people say yes it's fine others say no? Also if she renews her B-2 Visa, will it likely be denied knowing that there is an I-130 pending. We have a baby on the way and would like for her to come and help take care of the new born expecting 9/2019.

    It's a tough situation were in and don't know what to do as if we file the I-130 it will probably take 1 yr for her to immigrant over here and risk the B-2 renewal approval but if we wait and not file I-130 it's just going to take longer for her to immigrant here.

    Thanks all for your thoughts!

  • #2
    Originally posted by Theoyen View Post
    Hi All,

    Sorry if this question has been asked numerous times but wanted confirmation before proceeding. My wife recently passed her citizenship test and awaiting Oath Ceremony. She will file for her mom I-130 once she receives her naturalization certificate.

    Her mom has a B-2 Visa and expires 8/20/019. She has visited the states 2 times already in 2016 and 2017 with length of stay less than 6 months. She plans on coming over here to visit and take care of our kids in April. Can we apply to adjust her status so she gets a green card or it's not advise as her B-2 was intended for tourist not permanent resident (heard people say yes it's fine others say no? Also if she renews her B-2 Visa, will it likely be denied knowing that there is an I-130 pending. We have a baby on the way and would like for her to come and help take care of the new born expecting 9/2019.

    It's a tough situation were in and don't know what to do as if we file the I-130 it will probably take 1 yr for her to immigrant over here and risk the B-2 renewal approval but if we wait and not file I-130 it's just going to take longer for her to immigrant here.

    Thanks all for your thoughts!
    File for B2 renewal in Jan/Feb 2019, have her travel in Mar/Apr 2019 & then you file for I130.

    B2 after I130 is very difficult.
    - Not a legal advice, just MY opinion

    Comment


    • #3
      Originally posted by Libra_14 View Post
      File for B2 renewal in Jan/Feb 2019, have her travel in Mar/Apr 2019 & then you file for I130.

      B2 after I130 is very difficult.
      So can i file AOS while she is here on a B-2 Visa or it's not recommended? Also if we file the I-130 once my wife receives her naturalization certificate, and her mom comes over on a B-1 visa in March/April 2019, will CBP stop her and deny her entry even though her B-2 visa doesn't expire until 8/20/19?

      Comment


      • #4
        Originally posted by Theoyen View Post
        So can i file AOS while she is here on a B-2 Visa or it's not recommended?
        Legally, yes you can file for AOS. However the success of the AOS is dicey. By definition, an B2 visitor is a person NOT intending to migrate (they check ties to your home country to ensure that you return back) & by submitting I130 once she is here, you showing exact opposite reaction.

        Originally posted by Theoyen View Post
        Also if we file the I-130 once my wife receives her naturalization certificate, and her mom comes over on a B-1 visa in March/April 2019, will CBP stop her and deny her entry even though her B-2 visa doesn't expire until 8/20/19?
        She can still enter into USA before her (mother) I130. She will definitely be questioned a lot (slight chance she will be deported) after you file for her (mother) I130 & she tries to enter.

        My suggestion would be to file for B2 renewal now & then have her travel in Mar/Apr 2019 & once she is in USA, then you file for I130.

        Hope this helps.
        - Not a legal advice, just MY opinion

        Comment


        • #5
          So can my wife's mom visit the States say in August 2019 and when she enters the port of entry, the CBP will give her 6 months even though her visa valid is up to 8/20/19 will she be able to stay beyond 8/20/19 but less than 6 months the CBP stamps her passport? I'm confused as I thought she can only stay in the States up to her visa valid date 8/20/19?

          Will the CBP deny her entry because it is close to her visa expire date?

          Thanks.

          Comment


          • #6
            Originally posted by Theoyen View Post
            So can my wife's mom visit the States say in August 2019 and when she enters the port of entry, the CBP will give her 6 months even though her visa valid is up to 8/20/19 will she be able to stay beyond 8/20/19 but less than 6 months the CBP stamps her passport? I'm confused as I thought she can only stay in the States up to her visa valid date 8/20/19?

            Will the CBP deny her entry because it is close to her visa expire date?

            Thanks.
            Visa is merely for the entry purpose & does not define your stay. One can enter into USA with the visa getting expired the very next day & still can get 6 month I94.

            Ofcourse, it all depends on the discretion of the POE officer - but mostly she will get 6 months I94 & can stay beyond her current visa expiry.
            - Not a legal advice, just MY opinion

            Comment


            • #7
              Originally posted by Libra_14 View Post
              Visa is merely for the entry purpose & does not define your stay. One can enter into USA with the visa getting expired the very next day & still can get 6 month I94.

              Ofcourse, it all depends on the discretion of the POE officer - but mostly she will get 6 months I94 & can stay beyond her current visa expiry.
              If we decide to hire an attorney and file AOS for her mother, how long (ball park is it taking for her to get her green card)? Also, i heard she won't be able to leave the states until she is issued a green card or else it's consider application abandonment.

              Comment


              • #8
                Originally posted by Theoyen View Post
                If we decide to hire an attorney and file AOS for her mother, how long (ball park is it taking for her to get her green card)? Also, i heard she won't be able to leave the states until she is issued a green card or else it's consider application abandonment.
                That's correct - AOS (Adjustment of status) can be done only when the person is inside USA. If the person leaves USA while the AOS is in process, he/she will loose "current status" & so the "adjustment" will treated as abandoned.

                Not sure about the timelines, but she can continue to stay while the AOS is in process.
                - Not a legal advice, just MY opinion

                Comment


                • #9
                  Originally posted by Libra_14 View Post
                  That's correct - AOS (Adjustment of status) can be done only when the person is inside USA. If the person leaves USA while the AOS is in process, he/she will loose "current status" & so the "adjustment" will treated as abandoned.

                  Not sure about the timelines, but she can continue to stay while the AOS is in process.
                  I've talked to 2 immigration attorney (free consultation) and both have 50/50 on which i should do. One is conservative approach saying file I-130 for my wife's mom after she has come and exit the states on A B-2 visa and the other says to file an AOS while she visits the states on a B-2 tourist visa.

                  I have a headache now and don't know what to do? . If we do the AOS for her while she is in the states, she will overstay in a limbo category and cannot leave the states while the AOS is pending so if a a police office ask her of her permanent resident status and her stamped on her passport admitted until expires by CBP (usually 6 months stay) will she get deported? I'm so confuse after talking to that attorney. The attorney said that is a risk you take (which doesn't make sense to me). I thought attorneys are suppose to advise you on the best course of action???

                  If we file for her mom I-130 before she comes to visit the states, we risk her B-2 renewal approval if she decides to renew it later expires 8/20/19.

                  Don't know what to do?

                  We will file the I-130 for her dad, younger sisters (2) , and younger brother with the fee of $535 each will cost total 2,140 after she gets her citizenship certificate. This i can do as it is straight forward. It's her mother that i'm worried about.

                  Comment


                  • #10
                    Originally posted by Theoyen View Post
                    If we do the AOS for her while she is in the states, she will overstay in a limbo category and cannot leave the states while the AOS is pending so if a a police office ask her of her permanent resident status and her stamped on her passport admitted until expires by CBP (usually 6 months stay) will she get deported?
                    That's not true, a lot of people stays in USA awaiting their AOS to complete & that is legal & won't cause deportation.

                    Originally posted by Theoyen View Post
                    If we file for her mom I-130 before she comes to visit the states, we risk her B-2 renewal approval if she decides to renew it later expires 8/20/19.
                    Thats what was my first suggestion. Get renewal first in her home country. Then have her visit USA on B2 visa & then file AOS (though it will take time).
                    - Not a legal advice, just MY opinion

                    Comment


                    • #11
                      Originally posted by Libra_14 View Post
                      That's not true, a lot of people stays in USA awaiting their AOS to complete & that is legal & won't cause deportation.


                      Thats what was my first suggestion. Get renewal first in her home country. Then have her visit USA on B2 visa & then file AOS (though it will take time).
                      So if we file AOS for her mother when she comes here these are the forms we need to file for her mother right? I'm happy to hear that you said she can stay here if she files for AOS even though her stamp visa might expire pending the AOS (is it because she is considered an immediate relative mother to her US citizen daughter?)

                      I-130 Petition for relative $535 (how long it's taking to approve and interview ballpark?) so this will get processed in states and not in the foreign country consular? Do you have to file this form too or just the I-485?
                      I-131 travel document $575 (how long it taking to approve ballpark) is this wise to file just in case she needs to go back home for emergency right?
                      I-485 AOS for green card $1,225 (how long it's taking to approve and receive gc ballpark?)
                      I-765 app for employment authorization $495 (is this form required to get a green card)?

                      man that's like $2,830 in form fees.

                      Thank you so much for your wealth of information.

                      Comment


                      • #12
                        Originally posted by Theoyen View Post
                        I-131 travel document $575 (how long it taking to approve ballpark) is this wise to file just in case she needs to go back home for emergency right?
                        I-485 AOS for green card $1,225 (how long it's taking to approve and receive gc ballpark?)
                        I-765 app for employment authorization $495 (is this form required to get a green card)?
                        You will file those together, so is only $1,225 for all 3. But then there's the medical, vaccines, living expenses, travel to biometrics/interview, and some other things.

                        If someone is entering the USA on B2 the intention should be just to visit and not stay permanently. Of course that can change after a few weeks. Do the person plan to travel with a return ticket or only one-way? I guess if only one-way could look suspicious.
                        Nov 2018 - Package sent - EB
                        Day 1 - Package received at lockbox
                        Day 12 - Case/Fingerprint Fee Received
                        Day 34 - Fingerprint appointment
                        Day 104/105 - EAD - New card is being produced (principal/spouse & child)

                        Comment


                        • #13
                          Originally posted by Theoyen View Post
                          She can stay here if she files for AOS even though her stamp visa might expire pending the AOS (is it because she is considered an immediate relative mother to her US citizen daughter?)
                          Visa is merely for entry purpose - she need to have a valid visa only on the date of entry - doesn't matter when it expires post entry into USA.

                          Her entry is defined on I94 & she need to return by that date (which might be same as visa expiry of 6 months from date of entry) or file for AOS before I94 date.

                          She can stay beyond I94 date in USA because her application of AOS is in process (not because she is considered relative) - so AOS need to be filed atleast a week before I94 expiry date.
                          - Not a legal advice, just MY opinion

                          Comment


                          • #14
                            Originally posted by Libra_14 View Post
                            Visa is merely for entry purpose - she need to have a valid visa only on the date of entry - doesn't matter when it expires post entry into USA.

                            Her entry is defined on I94 & she need to return by that date (which might be same as visa expiry of 6 months from date of entry) or file for AOS before I94 date.

                            She can stay beyond I94 date in USA because her application of AOS is in process (not because she is considered relative) - so AOS need to be filed atleast a week before I94 expiry date.

                            Along with the 3 forms mentioned above, do i also need to file form I-130 for her mother if we decide to adjust her status while she is in the states? so an additional fee of $535 for I-130?

                            Just wanting to make sure i understand this correctly.

                            Thanks.

                            Comment


                            • #15
                              Originally posted by Theoyen View Post
                              Along with the 3 forms mentioned above, do i also need to file form I-130 for her mother if we decide to adjust her status while she is in the states? so an additional fee of $535 for I-130?

                              Just wanting to make sure i understand this correctly.

                              Thanks.
                              Not sure about the fee, but yes you’ll need to file I130 for her immigration once she is in USA.
                              - Not a legal advice, just MY opinion

                              Comment

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