Parent ovestay on visa waiver

[glowing_diamond]

I undertstand if parent enters country on a regular visa and then overstays eg for 2 years - waiting for son to get green card, then when son gets citizen ship, can he apply for the parent without the parent having to return to home counrty. So question is does it matter that parent came here on visa waiver

[rex1960]

I really don't know but I tend to think that 2 years is a stretch.
When we talk about overstaying here in this forum my understanding is we talk about less than 6 month until somebody files AOS

[cherr1980]

If a person overstay (means stay over the authorization given) for 180 days or more but less than 1 years is bar for 3 years to enter the US, if the overstay is a year or more then is bar for 10 years.

Visa waiver has a different set of rules, the person can stay only for 90 days, no extension should be file.

In whatever case or type of visa, if the person is an immediate relative of a USC that overstay is forgiven. In the case that the person is on visa waiver must file I think a "waiver" before applied for the immigrant visa. There are other people that enter on visa waiver in this forum and can illustrate you more about the visa waiver.

In the particular scenario that you are showing here is pretty tough for the parents and this is my personal opinion. So the parents came here in visa waiver, they overstay all these years, first that the son gets the permanent residency and then another 5 years so the son gets the citizenship IF nothing comes up that can delay it. So you are talking that these parents must wait 5 years + here without any legal status, they won't be able to get any authorization to work, to do something in the legal way and most important thinking that they are getting old what about the health issues if they don't have any legal status?

Back to the part of their son's citizenship, when he gest the citizenship then his parents can apply for adjusment of status.

I always consider that is good to think with a vision. I am not a negative person but should be good to think that many things can happen in a lapse of 5 years.

[rex1960]

One of the benefits of this forum is that there's always somebody out there knowing at least a bit of information that guides you further and deeper into the subject.

I've been thinking about this case and was looking at some pages of the USCIS website. Here's at least something about applicants who want to extend their NONIMMIGRANT status http://uscis.gov/graphics/howdoi/extendstay.htm and it is clear, that you're not eligible once you came here under VWP Visa Waiver Program, which is meant to be a NONIMMIGRANT status.

In the moment you overstay that Visa for the above mentioned 2 years you've already violated the immigration laws intentionally and chances are, that your case is going to be rejected.

But that's just my personal opinion. Neither am I a lawyer, let away an immigration lawyer, nor do I consider myself an expert in this matter.

[ema76]

My experience :

I am from France, came 3 times on visa waiver pilot program. The 3rd time, I stayed and overstayed... of course. That was in 2001. I filed all the forms on April of 2005. I overstayed more than 4 years !!! My husband got his citizenship on March 2005, that's why !!

Hope that helps !

Ema.

[ari4u]

This is from the instructions of I-485


you are not eligible for adjustment of status if any of the following apply to you:

You were admitted to the United States as a visitor under the Visa Waiver Program, unless you are applying because you are an immediate relative of a U.S. citizen (parent, spouse, widow, widower or unmarried child under 21 years old);

Your authorized stay expired before you filed this application;

You failed to maintain your nonimmigrant status, through no fault of your own or for technical reasons; unless you are applying because you are:
-- An immediate relative of a United States citizen (parent, spouse, widow, widower or unmarried child under 21 years old)

Going by the instructions and past experiences, it guess i would tell you that it should be okay in your case only when son becomes a USC... BUT you have to realize that they would be in an illegal status for a couple of years till the son gets his citizenship and they cannot work legally or leave the US and re-enter till then. It is a risk you and they should be willing to take. If the son's GC is denied, their hopes of legalizing their status would die away too.

My advise to you would be: Talk to a good immigration lawyer. We can only tell you what we think is right or wrong.