February 16, 2009: Petitioning For A Parent’s Permanent Residency

Petitioning For A Parent’s Permanent Residency

I am a permanent resident of the US. I received my residence through my wife who is an American citizen. Now I am filing my N-400 to become a citizen. My mother’s tourist visa has already expired for about 4 years now. Can I still file an I-130 and have my mother file an I-485? Am I going to be able to file for her knowing that her visa has expired? Is that going to affect my N-400 application in a negative way? Should I file my N-400 and a I-130 at the same time?
— Anonymous

Pursuant to the immigration laws and regulations and as illustrated by the Department of State’s monthly Visa Bulletin, there is no visa category for permanent resident sons/daughters who want to file for a parent. Thus, you must wait until you become a United States citizen before you can file an I-130 petition on your mother’s behalf.

The good news is that immigration classifies a United States citizen son/daughter over the age of 21 filing for a parent as an immediate relative petition. This means that your mother does not need to wait for a visa number to become available before she can file for her green card and work permit. It can be filed at the same time that you file the I-130 petition, assuming she is otherwise eligible to receive permanent residency. As for her tourist visa being expired, the good news continues. Based on your immediate relative relationship, your mother can adjust her status in the United States without paying a penalty or having that issue affect her green card eligibility.

Your mother being out of status should not have any effect on your Application for Naturalization. In fact, there is no reason for that fact to arise during the naturalization process. Once you are sworn in, you can file the petition on your mother’s behalf and she can file applications for lawful permanent resident status and employment authorization, assuming she is otherwise eligible. If the case is filed properly, the entire process from time of filing to the issuance of a green card and/or interview notice should be approximately six months.

Because this is a very intricate process that must be done correctly the first time to avoid any unnecessary delays, it would be wise to contact an experienced immigration attorney to explain to you the law and all of your options and to assist you with the filing.

Michael Shane and Evan Shane, Immigration Attorneys