August 25, 2008: Can I-485 Be Filed For Mother On Tourist Visa?

Can I-485 Be Filed For Mother On Tourist Visa?

My husband has recently filed an I-130 petition for his mother; she is currently staying with us on a visitor visa. Her visa will expire on September 16th. Can she stay here while we wait for her papers to get processed? Do we need to file for an extension of her stay? I appreciate any help you can give.
— Anonymous

There are several potential issues that may arise.

A tourist visa is issued with the understanding that the individual intends to remain in the United States for a temporary visit and return to their permanent residence outside of the United States upon the expiration of the authorized period of stay. If your husband’s mother arrived in the United States with that intent, and later changed her mind and wanted to stay permanently in the United States, he can file Form I-130, Petition for Alien Relative and your mother-in-law can concurrently file Forms I-485, Application to Adjust Status to Lawful Permanent Resident and I-765, Application for Employment Authorization. Your mother-in-law will be allowed to remain in the United States until a decision is made on the residency application.

It also appears that your mother-in-law will be eligible to file Form I-131, Application for Travel Document, requesting an advance parole document that will allow her to temporarily travel outside of the United States if necessary while her adjustment of status application remains pending. If she travels outside of the United States after filing Forms I-485 and I-131 but before she receives the advance parole document, such travel will render her application for residency abandoned. On another note, if your mother does not file the Form I-485 and leaves the United States, she may have a difficult time re-entering the United States on a subsequent trip using the visitor visa because there is a “permanent” visa petition that has been filed on her behalf and the Customs and Border Patrol (CBP) agent may believe that she is intends to permanently stay in the United States based on that underlying petition.

If you have questions about your mother-in-law’s immigration case, it would be wise for you to consult with an experienced immigration attorney to explain the process and all of the potential pitfalls that may arise.

Michael Shane and Evan Shane, Immigration Attorneys