B2 Visa Overstay - Options

[ishaqali]

My Mother-in-law came to the USA in March 2014, she was granted Visa until September. She paid a visit to her younger daughter who lives in Canada for a couple of months from May - August.

When she returned back to California in August, we didn't bother to check her visa, she was granted visa only until September.

We realized this week about this lapse, and figuring out what needs to be done. We were thinking about applying for her permanent residency at a later date.

My wife and I are naturalized citizens of the USA, would like to understand best way forward.

She is planning to go back to India second week of January.

We would like to explore the best option we have. Should we apply for her extension? file for I-130/485? or let her leave the country with the expired status?

Any help and advise would be greatly appreciated.

 

[newacct]

She cannot apply for Extension of Status because she is out of status.

She can apply for Adjustment of Status with I-130/I-485. But she cannot leave the U.S. until she gets either Advance Parole or the green card, or she will automatically abandon the Adjustment of Status. The Advance Parole takes about 3 months to get. So she will not be able to leave in January.

Or she can go back to India in January. She will have less than 180 days of unlawful presence and so will not have an unlawful presence ban. However, her visa is void (cannot be used anymore) because she had unlawful presence. If she wants to get permanent residency, she can go through Consular Processing in India. The process takes about a year from filing I-130 to her getting immigrant visa (you can even file the I-130 right now to begin the process).