I am USC. If my parents overstay their B2 visa for over a year, and they apply for GC, is there any potential issues? I know it's a problem for CP. the impression i got from the forum is it's fine with AOS. but will the immigration officer ask about this overstay during interview? is there any chance the green card application can be rejected? thanks a lot.
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any problem for AOS for overstaying parent
- Thread starter weiqingh
- Start date
but i have seen many posts mentioning that overstay is forgiven for immediate relatives of USC, such as this post http://www.immigrationportal.com/showpost.php?p=1489296&postcount=562
can someone confirm one way or another? which law article can confirm this? many thanks.
can someone confirm one way or another? which law article can confirm this? many thanks.
rex1960 said:As far as I know overstay is only excused for spouses of USC.
There's a chance your parents application is going to be rejected and they're facing deportion. Other users here might correct me if I'm wrong.
I suggest you'd consult a lawyer.
I believe "immediate relative" is eligible to AOS even though they are overstaying. The definition of immediate relative is, according to Title 8, those who does not come under numerical limitation.
Parents are immediate relative, so you know the answer.
Sec 245.1 (b)(10).
(b) Restricted aliens. The following categories of aliens are ineligible to apply for adjustment of status to that of a lawful permanent resident alien under section 245 of the Act, unless the alien establishes eligibility under the provisions of section 245(i) of the Act and Sec. 245.10, is not included in the categories of aliens prohibited from applying for adjustment of status listed in Sec. 245.1(c), is eligible to receive an immigrant visa, and has an immigrant visa immediately available at the time of filing the application for adjustment of status: (Revised 10/1/94; 59 FR 51091)
(10) Any alien who was ever employed in the United States without the authorization of the Service or who has otherwise at any time violated the terms of his or her admission to the United States as a nonimmigrant, except an alien who is an immediate relative as defined in section 201(b) of the Act or a special immigrant as defined in section 101(a)(27)(H), (I), (J), or (K) of the Act. For purposes of this paragraph, an alien who meets the requirements of § 274a.12(c)(9) of this chapter shall not be deemed to have engaged in unauthorized employment during the pendency of his or her adjustment application. (Added 7/23/97; 62 FR 39417)
And 201(b) defines immediate relatives as,
(b) Aliens Not Subject to Direct Numerical Limitations. - Aliens described in this subsection, who are not subject to the worldwide levels or numerical limitations of subsection (a), are as follows:
Parents are immediate relative, so you know the answer.
Sec 245.1 (b)(10).
(b) Restricted aliens. The following categories of aliens are ineligible to apply for adjustment of status to that of a lawful permanent resident alien under section 245 of the Act, unless the alien establishes eligibility under the provisions of section 245(i) of the Act and Sec. 245.10, is not included in the categories of aliens prohibited from applying for adjustment of status listed in Sec. 245.1(c), is eligible to receive an immigrant visa, and has an immigrant visa immediately available at the time of filing the application for adjustment of status: (Revised 10/1/94; 59 FR 51091)
(10) Any alien who was ever employed in the United States without the authorization of the Service or who has otherwise at any time violated the terms of his or her admission to the United States as a nonimmigrant, except an alien who is an immediate relative as defined in section 201(b) of the Act or a special immigrant as defined in section 101(a)(27)(H), (I), (J), or (K) of the Act. For purposes of this paragraph, an alien who meets the requirements of § 274a.12(c)(9) of this chapter shall not be deemed to have engaged in unauthorized employment during the pendency of his or her adjustment application. (Added 7/23/97; 62 FR 39417)
And 201(b) defines immediate relatives as,
(b) Aliens Not Subject to Direct Numerical Limitations. - Aliens described in this subsection, who are not subject to the worldwide levels or numerical limitations of subsection (a), are as follows:
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weiqingh said:but i have seen many posts mentioning that overstay is forgiven for immediate relatives of USC, such as this post http://www.immigrationportal.com/showpost.php?p=1489296&postcount=562
can someone confirm one way or another? which law article can confirm this? many thanks.
you might want to read other threads with overstay >180 days too
gc4parents
Registered Users (C)
weiqingh said:I am USC. If my parents overstay their B2 visa for over a year, and they apply for GC, is there any potential issues? I know it's a problem for CP. the impression i got from the forum is it's fine with AOS. but will the immigration officer ask about this overstay during interview? is there any chance the green card application can be rejected? thanks a lot.
Based on what you posted here, if there are no other issues, they are OK.
It should not matter if overstay is more than 180 days or less, as long as immediate relative is already in the US. CIS might give hardtime if overstay is long and it also depends on individual's case, but most likely GC will be granted.rex1960 said:you might want to read other threads with overstay >180 days too
That's why I suggested to consult a lawyer.GotPR? said:It should not matter if overstay is more than 180 days or less, as long as immediate relative is already in the US. CIS might give hardtime if overstay is long and it also depends on individual's case, but most likely GC will be granted.
"Giving a hard time" is underestimating the trouble those people are in once ICE is knocking on their door.
pianoplayer
Registered Users (C)
rex1960 said:That's why I suggested to consult a lawyer.
"Giving a hard time" is underestimating the trouble those people are in once ICE is knocking on their door.
I cannot disagree with this. Theoretically, there may be no problem. However, the hassle and uncertainty of certain processes are best not handled alone. Also, note that USCIS and ICE is known to "overlook" the law or simply ignore it ---best to seek professional help in such a situation.
weiqingh,
From what I've read in this forum, and from my own experience, there shoudn't be any problems with overstaying of USC's parents. My parents overstayed for almost 5 years at the time of their interview: NO questions asked.
It is pretty clear that overstay is forgiven to USC's parents, spouse and unmarried children under 21: http://www.uscis.gov/graphics/howdoi/LPReligibility.htm (read the title: "Otherwise Eligible Immediate Relatives").
From what I've read in this forum, and from my own experience, there shoudn't be any problems with overstaying of USC's parents. My parents overstayed for almost 5 years at the time of their interview: NO questions asked.
It is pretty clear that overstay is forgiven to USC's parents, spouse and unmarried children under 21: http://www.uscis.gov/graphics/howdoi/LPReligibility.htm (read the title: "Otherwise Eligible Immediate Relatives").
pianoplayer
Registered Users (C)
Anahit said:weiqingh,
From what I've read in this forum, and from my own experience, there shoudn't be any problems with overstaying of USC's parents. My parents overstayed for almost 5 years at the time of their interview: NO questions asked.
It is pretty clear that overstay is forgiven to USC's parents, spouse and unmarried children under 21: http://www.uscis.gov/graphics/howdoi/LPReligibility.htm (read the title: "Otherwise Eligible Immediate Relatives").
And because nothing happened with your parents, it is supposed to be a certain fact that nothing will happen to anyone else with your fact pattern.
The problem is that you do not in fact know if your fact pattern is synonymous with the OP's or that the same discretion will be used. I do not mean to be too harsh on your advice, which I know is given in good faith, but one has to be careful with broad sweeping statements.
TheRealCanadian
Volunteer Moderator
pianoplayer said:And because nothing happened with your parents, it is supposed to be a certain fact that nothing will happen to anyone else with your fact pattern.
That's not the point - the point is that by law, USCIS cannot legally deny the petition based on that overstay. There is no exercise of discretion involved here. ICE can arrest the parents and haul them before an immigration judge, but with a pending I-485 they can ask that the IJ approve the adjustment and they're fine.
What they SHOULD be careful NOT to do is leave the United States until they become permanent residents. Until their I-485 is approved, they remain eligible for the 3/10-year re-entry bars.
I saw this coming...pianoplayer said:And because nothing happened with your parents, it is supposed to be a certain fact that nothing will happen to anyone else with your fact pattern.
The problem is that you do not in fact know if your fact pattern is synonymous with the OP's or that the same discretion will be used. I do not mean to be too harsh on your advice, which I know is given in good faith, but one has to be careful with broad sweeping statements.
In general, I agree with you. But, in this case it's not in discretion of the officer to forgive parents' overstay, it's the law.
What I said wasn't based just on my experience. There are a lot of overstayed parents AOS cases on this forum: none of them were given hard time at the interview regarding the overstay. Some of them were even approved without an interview.
pianoplayer
Registered Users (C)
TheRealCanadian said:That's not the point - the point is that by law, USCIS cannot legally deny the petition based on that overstay. There is no exercise of discretion involved here. ICE can arrest the parents and haul them before an immigration judge, but with a pending I-485 they can ask that the IJ approve the adjustment and they're fine.
What they SHOULD be careful NOT to do is leave the United States until they become permanent residents. Until their I-485 is approved, they remain eligible for the 3/10-year re-entry bars.
I think you missed my point. I agree with you 100% as a matter of law ---and I also agree that the case will eventually be resolved. However, a lot of the arrest/removals process can be avoided with good representation, since officials are known to ignore the law at times until it comes before the judge --- causing much frustration, anxiety and lost time.
I apologize for not being clearer about what I meant. By "discretion" I was not referring to the ultimate legal decision on the case, rather than discretion as to handle it as a procedural matter. It's a matter of "making life hard" vs. "making life easy" --- even though the legal destination is the same, the journey can differ significantly.
pianoplayer
Registered Users (C)
Anahit said:I saw this coming...
In general, I agree with you. But, in this case it's not in discretion of the officer to forgive parents' overstay, it's the law.
What I said wasn't based just on my experience. There are a lot of overstayed parents AOS cases on this forum: none of them were given hard time at the interview regarding the overstay. Some of them were even approved without an interview.
See my comment to Canadian. Yes, you are correct, I did not make myself clear on what I meant by discretion, hence the confusion. My apologies.