petition parent -- need advice

[nfl0res]

hi,

my mom has a multiple visa expiring on dec 2010, she came here may 14,2008 and was given until nov 9, 2008 (stamped on i-94). i just filed for my citizenship this may 2008. i know uscis received it already coz my check was encashed already just yesterday.

i'm planning of making her stay her until i can get my citizenship (although naturalization now takes about 12-18months processing). so that means she will be overstaying. will i have a problem because of that? she also has a stamped on her passport NO AOS/COS/EOS when she came visit 2yrs ago.

i read in some posts that if a citizen will be petitioning a parent, overstaying is forgiven? and i read the i-485 instructions about who may NOT file and it says

D. Your authorized stay expired before you filed this application;
----> this is what's going to happen if i let her overstay

F. You failed to maintain your nonimmigrant status, other than through no fault of your own or for technical reasons; unless you are applying because you are:
1. An immediate relative of a U.S. citizen (parent, spouse, widow, widower, or unmarried child under 21 years old);
----> but this one somewhat contradicts the other one.

if you have any more info or advice for me, i will greatly appreciate it.

[pianoplayer]

Originally Posted by nfl0res

hi,

my mom has a multiple visa expiring on dec 2010, she came here may 14,2008 and was given until nov 9, 2008 (stamped on i-94). i just filed for my citizenship this may 2008. i know uscis received it already coz my check was encashed already just yesterday.

i'm planning of making her stay her until i can get my citizenship (although naturalization now takes about 12-18months processing). so that means she will be overstaying. will i have a problem because of that? she also has a stamped on her passport NO AOS/COS/EOS when she came visit 2yrs ago.

i read in some posts that if a citizen will be petitioning a parent, overstaying is forgiven? and i read the i-485 instructions about who may NOT file and it says

D. Your authorized stay expired before you filed this application;
----> this is what's going to happen if i let her overstay

F. You failed to maintain your nonimmigrant status, other than through no fault of your own or for technical reasons; unless you are applying because you are:
1. An immediate relative of a U.S. citizen (parent, spouse, widow, widower, or unmarried child under 21 years old);
----> but this one somewhat contradicts the other one.

if you have any more info or advice for me, i will greatly appreciate it.

Hi:

I don't really know what kind of advice you would like. If you were to read the Parents AOS and CP thread, you would see what the issues are.

Under the facts you provided, I cannot really tell what your intent was, and intent is key here. If you were to do this, immigrant intent would govern the analysis of USCIS in any potential adjudication/removal hearing.

It is interesting to note that your mother's passport was stamped with no AOS - some officers do this routinely, but it is usually reserved for when there is some suspicion in the case of the person. Did your mother overstay/stay for extended periods in the past? In any event, while the stamp is not determinative, it is a factor counting against AOS.

The only advice I would give is to consult an immigration attorney before you proceed. Give him or her all the relevant facts. I may be a law student, but I am not an attorney, and I am not your attorney.

Best wishes

[nfl0res]

thanks pianoplayer for taking time to read and replying to my post.

about the no AOS stamp -- she did extend her stay(3months) when my aunt took her to hawaii, not sure when was that. but according to my mother, it was when she was asked about the last time she visited, and she mistakenly said last year (when it is actually 2 years ago) the officer readily told her that she cannot file for extension and stamped her with that.

[pianoplayer]

Originally Posted by nfl0res

thanks pianoplayer for taking time to read and replying to my post.

about the no AOS stamp -- she did extend her stay(3months) when my aunt took her to hawaii, not sure when was that. but according to my mother, it was when she was asked about the last time she visited, and she mistakenly said last year (when it is actually 2 years ago) the officer readily told her that she cannot file for extension and stamped her with that.

Yes, it does sound as if the officer may have been worried about a potential AOS.

In any event, AOS under these facts is a tricky issue. The general rule is that you cannot enter the US on nonimmigrant status with the intent of immigrating. Therefore, if your mother honestly enters to visit, and subsequently, due to a change of circumstances, decides to stay, AOS may be appropriate. While this is the general rule, there is also the issue of proof -proving intent can be difficult.

Get some good legal advice based on all the facts.

[ml_boston]

In my post below, I explained how overstay is forgiven.
http://boards.immigrationportal.com/...60#post1910760

However, you would need to prove that she never committed fraud by entering the US on a temporary visa and intending to immigrate. If your "no aos" stamp was from a prior visit, then you should be ok since she that visit was temporary (she left). If the "no aos" is from the current visit, it could be more problematic.

She may get asked (via RFE or in the interview) to prove that she intended to be here temporarily in the current visit. It's ok if she later changed her mind, just that the entry intent was temporary. So you may want to start preparing evidence of that when she files.

-ML

5/13/08 - Parent I-130/I-485/I-765/I-131 mailed to Chicago Lockbox
waiting on reply...

[pianoplayer]

Originally Posted by ml_boston

In my post below, I explained how overstay is forgiven.
http://boards.immigrationportal.com/...60#post1910760

However, you would need to prove that she never committed fraud by entering the US on a temporary visa and intending to immigrate. If your "no aos" stamp was from a prior visit, then you should be ok since she that visit was temporary (she left). If the "no aos" is from the current visit, it could be more problematic.

She may get asked (via RFE or in the interview) to prove that she intended to be here temporarily in the current visit. It's ok if she later changed her mind, just that the entry intent was temporary. So you may want to start preparing evidence of that when she files.

-ML

5/13/08 - Parent I-130/I-485/I-765/I-131 mailed to Chicago Lockbox
waiting on reply...

Correct. However, the OP never mentioned when the intent to immigrate was formed. Therefore, it is impossible to tell whether AOS is even theoretically legal. Then, as you mention, there is the issue of proof.

As to the AOS stamp, it is true that an AOS stamp from the current visit would be more pertinent. However, an officer may consider prior AOS stamps in his or her analysis. On the other hand, even a current stamp is not outcome-determinative. Muddy waters here.

[nfl0res]

the "no aos" stamp was from a prior visit.

what is OP?

[TNguy78]

Originally Posted by nfl0res

the "no aos" stamp was from a prior visit.

what is OP?

OP - The "Original Poster", meaning you, the person who started the thread.

[nfl0res]

ahh. ok. Thanks Tnguy78 for clearing that up.

with regards to the intent to immigrate -- there's really no intention of that when my mom came here. was just really to visit and to see her grandkids especially my newborn son.

[Triple Citizen]

Then you have nothing to worry about.

Originally Posted by nfl0res

with regards to the intent to immigrate -- there's really no intention of that when my mom came here. was just really to visit and to see her grandkids especially my newborn son.