How late in Parents visit can we file for AOS or send them home for CP?

A

area51

Registered Users (C)
Parents are visiting the USA for 6 months on tourist visas and we thought possibly we could file AOS for them immediately after citizen Oath rather than they go through CP in their home country.

With the slow down with USCIS, the Citizenship Oath may be very close to when they must leave the USA. (estimating between 60-0 day buffer)

My question, what do you recommend is the latest we should consider filing for AOS for them? After the citizenship oath, is it safe to file as late as a (month, week, a few days) before their visitor's stay runs out?


Also, If citizenship oath is let's say 10 days after when they should have left, will AOS be denied for them if they overstayed? We don't want it to come to this but thought I'd ask this question as well. My guess is it doesn't work this way as it does with marriage.
 
Personally I do not recommend AOS for anyone on a B-2 visa. However my personal thoughts do not count. You can file for your parents' AOS even after their I-94s have expired.

area51 said:
My question, what do you recommend is the latest we should consider filing for AOS for them? After the citizenship oath, is it safe to file as late as a (month, week, a few days) before their visitor's stay runs out?
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I don't see any problem with this plan - sounds like your parents will have been here far longer than necessary to demonstrate they did not arrive in the US with immigrant intent.

The only thing I'd caution you to be careful with, is to make sure they obtain AP before leaving the country prior to I-485 approval. (If they were to leave without AP, their AOS is considered abandoned.)
 
I read the regulation of AOS, as long as the candidate legally enters US, then he/she is allowed to change their mind and do AOS later (shouldn't be too soon, at least 3 months). Good Luck!
 
Just be sure you (and more importantly your parents) understand that your parents are required to have nonimmigrant intent at the time they enter the country on the tourist visa.
 
Thanks all for the comments. I was helped in the past to understand the 30-60-90 day rule concerning AOS too soon after arrival.

Are you all saying, that if the citizenship oath occurs up until the last week of their 6 month stay we could apply for their AOS?
 
Just to ensure you understand this, there is no such rule in any USCIS manual. This is just what is considered to be the general rule-of-thumb in practice by USCIS and its adjudicators. There can be exceptions and they may depend on the office, officer, applicant, etc.

area51 said:
I was helped in the past to understand the 30-60-90 day rule concerning AOS too soon after arrival.
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In 1976, a landmark court case called Seihoon v. Levy clearly set the boundaries of the INS in determining the intent of individuals. Because the INS won the case, INS officers cite it constantly to demonstrate how intent can be determined. If the INS had lost the case, INS officers would say that the decision was limited to the person who brought the case. In any case, Seihoon v. Levy was brought before a U.S. District Court on appeal by an alien who contended that the INS had improperly denied his application for a change of status from Visitor status to Student status. The INS had originally denied his petition because while he entered the U.S. as a visitor, he immediately enrolled in a U.S. university and sought to change his status to student status. INS decided that because the alien had decided so rapidly to change from Visitor to Student status, he had misrepresented his intention to enter the U.S. as a visitor only. INS determined that his true intent, when entering as a “visitor,” was to enroll in a U.S. school.


The District Court decided that the INS had acted correctly when it denied the alien’s application for change of status to Student status. The Court’s reasoning was that the “rapid course of events” following the alien’s entry to the U.S. on Visitor status was evidence of his intent upon entry. While the Court recognized that it is impossible for the INS to read people’s minds in order to determine their intentions, it is certainly possible for the INS to observe the behavior that people exhibit after they express an intention. They can then compare people’s behavior to their expressed intentions, to see if it corresponds. If the “rapid course of events” following a person’s statement of intent seems to indicate that the person intended something other than what he or she expressed to the INS, then the consequences can be serious.


In the case of Seihoon v. Levy, the alien’s change of status was denied and he was not able to enroll in university classes in the U.S. at that time. The concept of nonimmigrant intent is applied to all nonimmigrant statuses except for H and L, which are exempt by law from this requirement. For example, if a B-2 visitor enters the U.S. and files a permanent residency application a few weeks later, USCIS is likely to find that the alien misrepresented his intent upon entry to the United States to enter only as a “visitor.”


The concept of “intent” is borrowed from Seihoon v. Levy and applied to many other immigration contexts in which the alien is required to have a certain intent.
 
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